Citation Nr: 21020941 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-45 546 DATE: April 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection to ischemic colitis is remanded. Entitlement to service connection for duodenal ulcer is remanded. Entitlement to service connection for a hypertension is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected Post-Traumatic Stress Disorder (PTSD), is remanded. FINDINGS OF FACT 1. Bilateral hearing loss is the result of military service. 2. Tinnitus is the result of military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from June 1987 to June 1991. Subsequently, he was a member of the Air National Guard from February 1994 to January 2014. This service included numerous periods of active duty, including from September 2001 to December 2002; December 2004 to March 2005; January 2006 to April 2006; January 2008 to September 2008; and March 2012 to December 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from November 2014 and December 2014 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a March 2020 hearing held before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript of the hearing is associated with the claims file. Additional VA and private treatment records were associated with the Veteran’s claims file since it was last adjudicated at the RO. During the March 2020 hearing, the Veteran waived initial RO consideration of those records. Accordingly, the Board will proceed with adjudication at this time. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). “Active military service” includes periods of active duty for training during which a Veteran is disabled by disease or injury, and periods of inactive duty for training during which a Veteran is disabled by injury. 38 C.F.R. § 3.6(a). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). As organic diseases of the nervous system, sensorineural hearing loss and tinnitus are listed conditions. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Bilateral Hearing Loss and Tinnitus The Veteran contends that he is entitled to service connection for both bilateral hearing loss and tinnitus. He argues that his military occupational specialty (MOS) of aviation boatswain’s mate while serving in the Navy was associated with hazardous noise exposure, including service on the flight deck. He further argues that his MOS’s in the Air National Guard, including roles in aerospace propulsion and security forces, were also associated with hazardous noise exposure. He reported that as a security specialist, he secured the planes and worked on the flight line. Although the Veteran does not have recorded active duty service during the period in which he reported working in aerospace propulsion, the Board finds that the Veteran’s reports of his duties and noise exposure are credible, as they are otherwise consistent with his military personnel records. Military noise exposure is conceded. Additionally, the Veteran has a diagnosis of bilateral sensorineural hearing loss for VA purposes under 38 C.F.R. § 3.385, which establishes existence of a present disability. The remaining question, therefore, is whether there is a nexus between the two. During the Veteran’s first period of active duty service, he was afforded audiological testing on both enlistment and separation from service, in both January 1987 and May 1991 respectively. The Veteran was afforded a reference audiogram in June 1987. Audiograms were completed throughout this period of service. In 1988, 1989 and 1990, significant threshold shifts were identified when comparing current results to the June 1987 audiogram, particularly in the left ear. Specifically, a May 1990 audiogram evidenced a 20-decibel shift in the left ear at 3000 Hertz testing. Prior to his enlistment in the Air National Guard, the Veteran was afforded a reference audiogram in December 1993. At this time, hearing loss for VA purposes was evidenced in the left ear, revealing 40-decibel results at 3000 Hertz testing. In September 1998, the Veteran was afforded a periodic examination, in which the Veteran met the VA criteria for hearing loss under 38 C.F.R. § 3.385 in both the right and left ears. Although the Veteran was identified as having bilateral high and low frequency hearing loss, it was found not to be disqualifying. Notably, the Veteran was not on active duty when either of these audiometric tests were completed. The Veteran was afforded many audiograms throughout his time in the Air National Guard, including during periods when he was on active duty and periods when he was not on active duty. Although bilateral hearing loss was shown in September 1998, during an audiogram completed while on active duty in June 2002, only the left ear hearing loss was demonstrated. This left ear hearing loss was consistently demonstrated throughout the 2000’s. When compared to the September 1993 audiogram, significant threshold shifts were shown throughout the period. Notably, in a January 2008 audiogram completed at the beginning of a period of active duty, bilateral hearing loss was again demonstrated. Findings of bilateral hearing loss remained consistent on audiograms completed in 2009, 2010, 2011, and 2012. During the Board hearing, the Veteran reported that he first noticed hearing loss around 2009. He reported, however, that his wife at the time had noticed he had difficulty hearing before then. He estimated that she had first noticed his hearing loss around 2003 or 2004. In October 2014, the Veteran was afforded a VA hearing loss examination. Here, the examiner opined that she could not provide a medical opinion without resorting to speculation. She found that the Veteran had hearing that was essentially within normal limits in both ears at separation in May 1991, with no significant decrease compared to his two examinations in 1987. She noted that there were no audiometric findings from his last period of active duty service. She indicated, however, that the Veteran’s bilateral hearing loss was atypical for one caused by noise exposure and looked more typical of one which is due to hereditary reasons. The examiner correctly noted that audiometric testing was not completed during the final period of the Veteran’s active duty service. However, she did not consider the numerous audiograms that were completed before then, indicating that the Veteran had hearing loss in his left ear as early as December 1993 and consistent bilateral hearing loss since January 2008. Furthermore, although the examiner stated that there were no significant shifts in hearing loss during the Veteran’s first period of active duty service, she failed to consider the Hearing Conservation Data completed throughout that period of service documenting threshold shifts, particularly the 20-decibel shift in May 1990. In December 2014, an addendum opinion was obtained. The examiner opined that it was less likely than not that the Veteran’s hearing loss was caused by service, reasoning that military enlistment, separation and periodic audiograms showed no indication of any significant auditory threshold shifts occurring during active military service. The examiner found that it was at least as likely as not due to the combined effects of multiple factors incurred during non-active military service, and that there was no evidence to suggest any existing hearing loss was permanently aggravated beyond its natural progression by military service. However, this examiner failed to identify the threshold shift identified during the first period of service. The Board finds that the Veteran’s in-service noise exposure began during his active duty with the Navy and continued throughout his 20 years of service in the Air National Guard. Furthermore, significant threshold shifts were evidenced in the left ear at 3000 Hertz during his first period of active duty service. Shortly thereafter, left ear hearing loss, specifically at 3000 Hertz was documented. The left ear hearing loss following first period of active duty service continued throughout his active service. Ultimately, bilateral hearing loss was demonstrated on audiological testing completed during a later period of active service. Such is sufficient to establish that this bilateral hearing loss is due to his active service and has continued to the present. Service connection for bilateral hearing loss is warranted. Regarding tinnitus, the Veteran initially denied it in service treatment records from February and August 2010. However, on the October 2014 VA tinnitus examination, the Veteran reported recurrent tinnitus. He reported that it was intermittent, but mainly in the left ear. It was noted that there were no specifics as to onset, it happened “just over time.” The examiner opined that there was no clear link to active duty, stating that there was no post-deployment health assessment in the Veteran’s file. She noted that she would reconsider if this document was found later and it is positive for tinnitus. In the December 2014 addendum opinion, the examiner stated that most tinnitus complaints are subjective, and that tinnitus following a blow to the head or noise exposure is accompanied by high frequency hearing loss. He stated that most cases of hearing loss are temporary, and as the hearing loss resolves, so does the tinnitus. He concluded that it at least as likely as not that the Veteran’s tinnitus was due to the combined effects of multiple factors incurred during non-active military service. Notably, tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). During the Board hearing, the Veteran clarified that he first experienced tinnitus while he was on active duty in the Navy in 1989 or 1990. He stated that the ringing in his ears “comes and goes.” He had always thought it was “noise behind,” and that when he would pull his ear or use a Q-tip, it was a “standout humming sound.” Although this appears contradictory with the Veteran’s denial of tinnitus in the 2010 records, he also indicated at the hearing that during his last audiometric evaluation, he had thought that the tinnitus was just noise in the background. This indicates, even those he experienced it at an earlier date, the Veteran may not have been aware that his tinnitus was a medical condition until recently. Accordingly, in addition to the evidence of in-service acoustic exposure, the Veteran has provided competent and credible lay reports of continuity of symptomatology from service. The Board accords significant probative weight to the lay statements of the Veteran. The Veteran’s lay statements are sufficient to establish service connection for tinnitus. Service connection for tinnitus is warranted. REASONS FOR REMAND Ischemic Colitis and Duodenal Ulcer The Veteran contends that his ischemic colitis and duodenal ulcer are due to Gulf War service in the Southwest Asia theater. The DD-214 from his first period of active duty service shows that he received a Southwest Asia Campaign Service Medal but does not specify where he served. During the Board hearing, the Veteran reported that he was deployed from August 1990 to March 1991, during which time he was stationed in areas including the Persian Gulf and Red Sea. These locations qualify as Gulf War service under 38 C.F.R. § 3.317. Although the specific locations of his service are not confirmed in the military personnel records, such do indicate that he had Gulf War service from September 1990 to March 1991, which align with the dates provided by the Veteran. Additionally, the Veteran’s personnel records confirm that he was in Saudi Arabia from February 1999 to April 1999. Accordingly, Gulf War service in Southwest Asia is conceded. During his first period of active duty service, the Veteran reported to a sick call for epigastric pain in November 1987. He complained of a stomach cramp along with cold symptoms and displayed tenderness to the substernal area/umbilicus. The assessment noted epigastric pain as well as an upper respiratory infection. The Veteran’s National Guard records reflect that in March 1995, he had nausea and vomiting associated with a peptic ulcer. Private treatment records show that in March 1995, he was admitted to a hospital for severe epigastric pain and identified as having a history of peptic ulcer disease. His final diagnoses upon discharge included extensive duodenitis, sliding hiatal hernia without reflux, possible angina pectoris, and anemia. In March 2001, the Veteran was admitted to the emergency room for rectal bleeding. X-rays were completed; no abnormality was identified in the chest and no dilated bowel was identified. The following day, he was admitted to a different hospital for abdominal pain. He was identified as having a positive enzyme for H pylori. Following an esophagogastroduodenoscopy, he was afforded a postoperative diagnosis of duodenal ulcer, segmental sigmoid colitis. In April 2001, he was again hospitalized with an admitting diagnosis of colitis. Following a colonoscopy, the impression revealed colitis, resolved; family history of colon cancer; sigmoid colon. In November 2003, the Veteran went to the emergency room complaining of abdominal pain, nausea, vomiting, and bloody stools. He was afforded a colonoscopy. The impression showed colitis, noted as possibly Crohn versus ischemic colitis. In December 2003, he was again admitted to the emergency room, with an admitting diagnosis of ischemic colitis. An abdominal scan was completed, and it was noted that clinical correlation as to the area of colitis was suggested. In private treatment records from March 2004, the physician noted that the Veteran had recently had two possible episodes of ischemic colitis, in 2001 and December 2003, but that he had recovered quickly from this and did not exhibit continued symptoms. The Veteran was afforded a VA intestinal conditions examination in October 2014, at which time the diagnoses of ischemic colitis from 2001 and duodenitis/hiatal hernia from March 1995 were confirmed. The examiner provided an insufficient, unclear rationale, providing both positive and negative nexus opinions. She stated first that it was at least as likely as not that the episodes were incurred in service, but that since there is no medical evidence linking the development or aggravation of the conditions to any specific military exposures, hazards, or events, it is less likely than not that the GI conditions were caused by service, but rather, that they are of unknown specific cause. In December 2014, an addendum opinion was obtained, in which the examiner gave a negative nexus opinion, noting that the Veteran’s April 2001 and November 2003 episodes were not on periods of active service. He stated that while review of the records indicate that there may have been temporary exacerbations of these conditions while on active duty, there is no evidence that they were permanently aggravated beyond their natural progression by military service. Post-service VA treatment records show that the Veteran was afforded a colonoscopy in August 2013, with normal results. In April 2016, he reported rectal bleeding. However, following a CT scan, it was noted that lack of inflammatory changes suggested against colitis as the etiology of the bleeding, but rather, suggested that such may be due to internal hemorrhoids, particularly in light of increased constipation that the Veteran had been experiencing. February 2017 records indicate continued complaints of chronic constipation, additional complaints of GERD, a history of internal hemorrhoids (asymptomatic), and a history of ischemic colitis. In December 2019, the Veteran was afforded an additional VA intestinal conditions examination. The examination was intended to assess a separate claim for irritable bowel syndrome but included reference to the ischemic colitis. The examiner noted the Veteran’s continued symptoms of constipation and indicated that the Veteran believes that the ischemic colitis has caused his continued GI problems. Although the examiner did not comment on the possible relationship between the current symptoms and the ischemic colitis, she noted that GI symptoms began in the 1990’s and are persisting today. Accordingly, the full extent of Veteran’s current gastrointestinal diagnoses and symptoms are unclear. Clarification should be provided upon remand. After identifying the Veteran’s current conditions, the examiner must consider whether there is any relationship between such and his service, to include service in the Gulf War. Furthermore, although the incidents of ischemic colitis, duodenitis/hiatal hernia, and ulcers did not occur on active duty, the examiner must opine as to whether such are causally related to his Gulf War service. Alternatively, the examiner must consider whether the Veteran’s complaint of epigastric pain in November 1987 suggests that any of these conditions first began during his first period of duty service. Hypertension and Heart Condition The Veteran contends that his hypertension and alleged heart condition are due to Gulf War service in the Southwest Asia theater. December 2003 private treatment records include an echocardiogram showing that the Veteran had a heart murmur, but otherwise normal results. In National Guard records from March 2004, testing showed an abnormal ECG. The results included note of “sinus bradycardia, T wave abnormality, consider lateral ischemia.” In March 2010, a private physician indicated that the Veteran had an EKG which was consistent with changes of ischemia and/or left ventricular hypertrophy. The doctor stated that he believed the abnormal EKG was secondary to hypertensive heart disease. It was also noted that the Veteran had uncontrolled hypertension. In January 2012, an ECG revealed left ventricular hypertrophy. Notably, the hypertension diagnosis was not afforded during a period of active duty service. In October 2014, the Veteran was afforded a VA hypertension examination, identifying that hypertension was diagnosed around 2011. The examiner provided an unclear, self-contradictory rationale. First, she stated that based on available information on dates of active duty and the details in medical history, it was her medical opinion that the Veteran’s hypertension was incurred during military service. She then stated, however, that current medical literature did not link any specific military service experiences/environmental hazards to the development of, or aggravation of, hypertension. She ultimately concluded that it was also her medical opinion that it was less likely than not that the Veteran’s hypertension was caused or aggravated by any in-service event, injury, or illness, and that the Veteran’s hypertension is most likely due to obesity and family history. Accordingly, the Veteran should be afforded an additional examination considering whether his hypertension is causally related to or aggravated by service, to include Gulf War service in Southwest Asia. In October 2014, the Veteran was afforded a VA heart conditions examination. The examiner commented that the Veteran did not have any ongoing specific heart disease diagnosis. Although it is noted that there was a prior history of "mild left ventricular hypertrophy, and hypertension," the examiner commented that no ongoing or continuing diagnosis of left ventricular hypertrophy was documented. The Veteran was afforded no other cardiac diagnosis. He was identified as having no cardiovascular symptoms, or anginal equivalent symptoms. The examiner stated that the Veteran did not have a cardiac condition, and that therefore, no service-connection could be made. In a June 2016 statement, the Veteran stated that he still receives treatment for a current heart condition, in addition to hypertension, from both a private doctor and the VA. Additionally, as previously mentioned, the Veteran’s National Guard records indicated that he was diagnosed with hypertensive heart disease. Continued notation of hypertensive heart disease is also reflected in private treatment records from October 2015. Accordingly, the Veteran should be afforded an additional VA heart conditions examination considering whether he has a current diagnosis for any heart condition, including hypertensive heart disease, and whether such is causally related or aggravated by Gulf War service in Southwest Asia. Additionally, both the Veteran’s VA treatment records and his June 2016 statement suggest that he has continued to receive treatment for a heart condition from an outside provider. Accordingly, any updated private treatment records should be associated with the claims file. Obstructive Sleep Apnea The Veteran contends that he is entitled to service connection for obstructive sleep apnea, to include as secondary to his currently service-connected PTSD. Although the Veteran’s service treatment records do not reference a sleep apnea diagnosis or related symptoms, during the Board hearing, the Veteran stated that he was diagnosed while in the National Guard. However, this diagnosis is not reflected on his in-service treatment records. The Veteran also reported that while on active duty, people in his unit complained about his snoring. He recalled that while he was in Texas training, he was teased that his breathing sounded like “a bear coming through the woods.” He did not recall experiencing sleep apnea symptoms during his first period of active duty service in the Navy. The Veteran’s VA treatment records indicate that in October 2014, he exhibited loud snoring, witnessed apnea, excessive daytime sleepiness, and that he should be screened for obstructive sleep apnea. He was subsequently afforded a sleep study in October 2014. Although the sleep study is not visible within the records, it is contained in VISTA imaging. The following month, it was noted that the Veteran had a diagnosis of obstructive sleep apnea. In October 2014, the Veteran was afforded a VA sleep apnea examination. During this examination, it was confirmed that the sleep study provided a moderate obstructive sleep apnea diagnosis. The examiner stated that there is no way to be sure regarding date of onset of the Veteran’s sleep apnea. The examiner provided an insufficient, internally contradictory rationale, in which she stated that based on the dates of active duty and the details in his medical history, it was her medical opinion that it is at least as likely as not that the Veteran’s sleep apnea was incurred during military service. She then stated that current medical literature does not link any specific military service experiences/environmental hazards to the development of, or aggravation of, sleep apnea. She ultimately concluded that it is less likely than not that the Veteran’s sleep apnea was caused by or aggravated by an in-service event, injury, or illness, and that the Veteran’s sleep apnea was more likely due to obesity and/or an unknown cause. In December 2014, an addendum medical opinion was obtained. Here, the examiner opined that it was less likely than not that the sleep apnea was incurred in or caused by service. The examiner stated that review of service treatment records showed no evidence or diagnosis of treatment for sleep apnea while on active duty, and that the diagnosis was not confirmed until after military service in 2014. The examiner noted that while tonsillar hypertrophy can increase the risk of sleep apnea, the Veteran has had a tonsillectomy. The examiner then stated that definite risks of sleep apnea include obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities, and that potential risk factors include hereditary, smoking, and nasal congestion. He then described the risks associated with obesity and craniofacial and upper airway soft tissue abnormalities. Since this examination, the Veteran provided a competent and credible lay statement indicating that symptoms of snoring were identified while he was on active duty or active duty training. Additionally, he has raised the contention that his obstructive sleep apnea is related to his service-connected PTSD. Accordingly, on remand, the Veteran should be afforded another VA examination, considering both the Veteran’s lay statement regarding snoring while he was on active duty service as well as whether this diagnosis is related to PTSD. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records, and take appropriate steps to ensure that all VISTA images, to include an October 2014 sleep study, are produced. 2. Take all actions required to obtain updated private treatment records from current providers treating the Veteran for his heart condition. The Veteran should be informed that in the alternative, he may obtain and submit the records himself. 3. Schedule the Veteran for VA Stomach and Duodenum and/or Intestinal (other) examinations to determine the nature and etiology of all gastrointestinal disorders or disabilities; the claims folder must be reviewed in conjunction with such. The examiner(s) must identify any current gastrointestinal disability or condition. If symptoms and complaints cannot be associated with a diagnosed condition, such must be clearly stated. The examiner is asked to opine as to whether any diagnosed condition, to include the previously identified duodenal ulcer and ischemic colitis, as well as any unaccounted for symptoms, are at least as likely as not related to military service, to include Southwest Asia service. The examiner must discuss whether such conditions are related to in-service complaints of epigastric pain from November 1987. A full and complete rationale is required for all opinions expressed. 4. Schedule the Veteran for a VA hypertension examination; the claims folder must be reviewed in conjunction with such. The examiner must opine as to whether the Veteran’s currently diagnosed hypertension is at least as likely as not related to military service, to include Southwest Asia service. A full and complete rationale is required for all opinions expressed. 5. Schedule the Veteran for a VA heart conditions examination; the claims folder must be reviewed in conjunction with such. The examiner must identify all current heart conditions, considering previous diagnoses for hypertensive heart disease. For any conditions, the examiner must opine as to whether it is at least a likely as not related to military service, to include Southwest Asia service. A full and complete rationale is required for all opinions expressed. 6. Schedule the Veteran for a VA sleep apnea examination; the claims folder must be reviewed in conjunction with such. The examiner must opine as to whether the Veteran’s currently diagnosed obstructive sleep apnea is at least as likely as not caused or aggravated by service, to include his service-connected PTSD. The Veteran’s lay statements regarding in-service symptoms of snoring must be considered. A full and complete rationale is required for all opinions expressed. 7. Then, readjudicate the claims on appeal. If the benefits sought remain denied, issue a supplemental statement of the case, and then return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.