Citation Nr: 23053745 Decision Date: 09/27/23 Archive Date: 09/27/23 DOCKET NO. 20-08 668 DATE: September 27, 2023 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for headaches, to include as secondary to a neck or back disorder, is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a heart disorder, to include as due to herbicide exposure and to include as secondary to an acquired psychiatric disorder, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure and to include as secondary to an acquired psychiatric disorder, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, insomnia, sleep disturbances, and depression, is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea and to include as secondary to an acquired psychiatric disorder, is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is caused by in-service noise exposure. 2. The Veteran's tinnitus began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1972 to January 1976, to include service in Thailand. The Veteran testified at a June 2021 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Veteran filed a claim for what he labeled a "mental health condition," to include PTSD, anxiety, and depression. The agency of original jurisdiction (AOJ) separately characterized this issue as claims for entitlement to service connection for PTSD and depression. In addition, the Veteran claimed entitlement to service connection for what he identified as a "sleep disorder (insomnia and/or sleep apnea)." The evidence of record shows the Veteran to have both psychiatric and sleep symptoms. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board will characterize the Veteran's mental health claim as one for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, insomnia, sleep disturbances, and depression. The Board will also recharacterize the Veteran's claim for sleep apnea, pursuant to Clemons, as one for entitlement to service connection for a sleep disorder, to include sleep apnea. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. The Veteran asserts his bilateral hearing loss and tinnitus had their onset or are caused by noise exposure during service. The Board concludes that the Veteran has a current diagnosis of bilateral hearing loss and tinnitus that began in and are caused by active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran's military personnel records show that he was assigned a military occupational specialty (MOS) of reciprocating engine mechanic. On the July 2018 VA hearing loss examination, the examiner indicated the Veteran has diagnoses of bilateral sensorineural hearing loss and tinnitus. No VA medical opinion was provided. In a July 2021 private medical opinion, the medical provider diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus. The Veteran stated he has hearing loss and tinnitus in both ears. The Veteran stated he served as an aircraft engine mechanic during service. He stated he was exposed to hazardous noise from firing ranges, aircrafts, ground equipment, afterburners, auxiliary power units, engine noise, flight lines, and rocket and mortar explosions. The medical provider opined that the Veteran's bilateral hearing loss and tinnitus are at least as likely as not related to military service as an aircraft engine mechanic. The medical provider reasoned that exposure to hazardous noise from firing ranges, aircrafts, ground equipment, engine run-ups, and rocket and mortar explosions resulted in acoustic trauma, hearing loss, and tinnitus. Based on the Veteran's credible assertions, supporting evidence indicating that the Veteran experienced noise exposure in service, and the July 2021 private medical opinion, the Board finds that's the Veteran's bilateral hearing loss and tinnitus were incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Therefore, service connection for bilateral hearing loss and tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as secondary to a neck disorder, a back disorder, or TBI, is remanded. Remand is necessary to obtain an addendum VA opinion, or a new VA examination if necessary. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is considered adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Veteran underwent a September 2018 VA examination for headaches. The examiner diagnosed the Veteran with tension headaches; however, the examiner did not provide an opinion. At the June 2021 Board hearing, the Veteran also testified that he was injured on an obstacle course when another airman fell on him. Board Hearing Transcript (T.) at 7. He stated he fell and hit his head and back. Id. The Veteran stated that his headaches began immediately after the injury on the obstacle course. T. at 21. Therefore, remand is required to obtain a VA medical opinion. 2. Entitlement to service connection for TBI is remanded. Remand is necessary to obtain a new VA examination. Here, on the September 2018 TBI VA examination, the examiner found the Veteran to have no diagnosis of TBI. However, on the September 2018 TBI cognitive screening diagnostic form, there appear to be symptoms of TBI documented, to include short term memory loss, attention issues, word retrieval difficulties, and dizziness. In a May 2019 private treatment record, the medical provider indicated the Veteran experiences lightheadedness, dizziness, convulsions or seizures, tremors, head injury, memory loss, confusion, nervousness, depression, and sleep problems. The Veteran also testified that he was injured on an obstacle course when another airman fell on him. T. at 7. He stated he fell and hit his head and back and lost consciousness. Id. Therefore, remand is required to obtain an additional VA examination and opinion. 3. Entitlement to service connection for a neck disorder is remanded. 4. Entitlement to service connection for a back disorder is remanded. Remand is required to obtain a VA examination. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. Id.; see also 38 C.F.R. § 3.159(c)(4). Here, on the February 2019 notice of disagreement, the Veteran stated he injured his neck on an obstacle course when another airman fell on him. He stated he has experienced pain daily. In an October 2020 private treatment record, the Veteran complained of low back pain and imaging demonstrated degenerative changes in the low back. At the June 2021 Board hearing, the Veteran stated he has a neck disorder, that includes pinching. T. at 3. He stated his neck disorder also causes headaches. Id. The Veteran also testified that he was injured on an obstacle course when another airman fell on him. T. at 7. He stated he fell and hit his head and back. Id. Therefore, the criteria for McLendon have been met. And as a result, the Board cannot make a fully informed decision on the issue of entitlement to service connection for a neck disorder and back disorder because no VA examination has been performed and no VA examiner has opined whether the Veteran's neck disorder and back disorder were caused by service. Therefore, a VA examination is necessary. 5. Entitlement to service connection for a heart disorder, to include as due to herbicide exposure and as secondary to an acquired psychiatric disorder, is remanded. 6. Entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to an acquired psychiatric disorder, is remanded. Here, the Veteran has testified that he was deployed to Vietnam from January 1973 to June 1973 but has acknowledged that his service personnel records do not reflect such service. He also reported that he briefly served in Thailand while stationed in the Philippines in 1975. His service personnel records confirm that he served in Thailand in February 1975. However, it is unclear from the evidence of record whether he served at a Royal Thai Air Force Base while deployed to Thailand in February 1975; the record as it currently stands states only that he was "sent to Thailand to replace a number 1 engine on a PACAF assigned C11SA aircraft." It is not clear from the record, however, where in Thailand the Veteran was sent on this assignment. The record further does not currently reflect any service in the Republic of Vietnam in 1973. Remand is thus warranted to permit the AOJ to conduct further development of the Veteran's assignment to Thailand in February 1975, as well as his reported deployment to Vietnam from January to June 1973. Post-service treatment records indicate that the Veteran has a history of hypertension and coronary artery disease, but it is unclear from the evidence currently of record whether the Veteran has a current diagnosis of a heart disorder or hypertension. At the June 2021 Board hearing, the Veteran stated he is diagnosed with hypertension and is prescribed medication. T. at 59. The Veteran also stated he had a heart attack in 2010. T. at 60. Therefore, the criteria for McLendon have been met. And as a result, the Board cannot make a fully informed decision on the issue of entitlement to service connection for hypertension and a heart disorder because no VA examination has been performed and no VA examiner has opined whether the Veteran's hypertension or heart disorder was caused by service or is diagnosed and qualifies for presumptive service connection. Therefore, a VA examination is necessary. 7. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, insomnia, sleep disturbances, and depression, is remanded. Remand is necessary for additional development to verify the Veteran's claimed stressor and to obtain VA examination. Here, the Veteran and his wife have stated that the Veteran was present for a protest or riot that occurred on and near Tinker Air Force Base (AFB) in Oklahoma in the early spring of 1972. Military personnel records show the Veteran was assigned to Tinker AFB from February 1972 to April 1973. The Agency of Original Jurisdiction (AOJ) is directed to confirm that this protest or riot occurred on Tinker AFB in Oklahoma while the Veteran was stationed there. Accordingly, remand is necessary verify the Veteran's stressor. Further, the Veteran underwent a September 2018 VA psychiatric examination, at which time he was diagnosed with PTSD. However, the examiner did not provide an opinion. Therefore, remand is required for further development and to obtain a VA medical opinion. 8. Entitlement to service connection for a sleep disorder, to include sleep apnea, and to include a secondary to an acquired psychiatric disorder, is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to service connection for a sleep disorder, the issues are inextricably intertwined. Two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered. Harris v. Derwinski, 1 Vet. App. 180 (1991). A remand of the claim for a sleep disorder is therefore required. The matters are REMANDED for the following action: 1. Conduct appropriate development to determine whether the Veteran had active service within the Republic of Vietnam from January to June 1973, and to determine where in Thailand he was assigned for aircraft repair in February 1975. If more details are needed, then contact the Veteran to request this information. If there remains insufficient information to verify the Veteran's in-service exposure to an herbicide agent after attempting to conduct this requested development, then issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify his in-service exposure to an herbicide agent. A copy of any Formal Finding and any notification sent to the Veteran should be associated with the claims file. 2. Obtain a VA medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's headaches. The examiner must opine whether it is at least as likely as not that the Veteran's headaches began in service, within one year of service separation, or are otherwise related to the Veteran's service, to include an assertion of an in-service injury during training on an obstacle course. The examiner must also opine as to whether it is at least as likely as not that: " The Veteran's headaches were caused by a neck or back disorder or TBI, or " The Veteran's headaches were aggravated beyond its natural progression by a neck or back disorder or TBI. The claims file must be made available to and reviewed by the examiner. The examiner must provide a complete rationale for all opinions offered and must specifically and thoroughly discuss the Veteran's contentions regarding his in-service experiences and their effect on his current symptomatology. 3. Obtain an additional VA examination from an appropriate clinician to determine nature and etiology of the Veteran's symptoms of TBI. The examiner must opine whether it is at least as likely as not that the Veteran's TBI and/or symptoms of TBI is related to the Veteran's service, to include an assertion of an in-service injury during training on an obstacle course. The claims file must be made available to and reviewed by the examiner. The examiner must provide a complete rationale for all opinions offered and must specifically and thoroughly discuss the Veteran's contentions regarding his in-service experiences and their effect on his current symptomatology. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's neck disorder. The examiner must opine as to whether it is at least as likely as not that the Veteran's neck disorder began in service, within one year of service separation, or is otherwise related to service, to include an assertion of an in-service injury during training on an obstacle course. The claims file must be made available to and reviewed by the examiner. The examiner must provide a complete rationale for all opinions offered and must specifically and thoroughly discuss the Veteran's contentions regarding his in-service experiences and their effect on his current symptomatology. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's back disorder. The examiner must opine as to whether it is at least as likely as not that the Veteran's back disorder began in service, within one year of service separation, or is otherwise related to service, to include an assertion of an in-service injury during training on an obstacle course. The claims file must be made available to and reviewed by the examiner. The examiner must provide a complete rationale for all opinions offered and must specifically and thoroughly discuss the Veteran's contentions regarding his in-service experiences and their effect on his current symptomatology. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's heart disorder. The examiner must clarify all diagnoses of heart disorders the Veteran has experienced at any point during the appeal period. For each such diagnosis, the examiner must opine as to whether it is at least as likely as not that the disorder began in service, within one year of service separation, or is otherwise related to service, to include, to include as due to his reported in-service herbicide exposure. The examiner must also opine as to whether it is at least as likely as not that: " The Veteran's heart disorder was caused by an acquired psychiatric disorder, or " The Veteran's heart disorder was aggravated beyond its natural progression by an acquired psychiatric disorder. The claims file must be made available to and reviewed by the examiner. The examiner must provide a complete rationale for all opinions offered and must specifically and thoroughly discuss the Veteran's contentions regarding his in-service experiences and their effect on his current symptomatology. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's claimed hypertension. The examiner must clarify whether the Veteran currently has hypertension or has been diagnosed with hypertension at any point during the appeal period. If such a diagnosis is confirmed, the examiner must opine as to whether it is at least as likely as not that the disorder began in service, within one year of service separation, or is otherwise related to service, to include, to include as due to his reported in-service herbicide exposure. The examiner must also opine as to whether it is at least as likely as not that: " The Veteran's hypertension was caused by an acquired psychiatric disorder, or " The Veteran's hypertension was aggravated beyond its natural progression by an acquired psychiatric disorder. The claims file must be made available to and reviewed by the examiner. The examiner must provide a complete rationale for all opinions offered and must specifically and thoroughly discuss the Veteran's contentions regarding his in-service experiences and their effect on his current symptomatology. 8. Attempt to corroborate the Veteran's reported stressors, to include whether trespassers, protests, or riot occurred on Tinker AFB between February 1972 and June 1972. 9. The Veteran should be scheduled for a VA psychiatric examination. The A examiner is asked to address the following questions: a) The VA examiner should confirm whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor(s). b) If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). c) If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed psychiatric disorder, to include any diagnosed at any point during the period on appeal, either began during or was otherwise caused by the Veteran's military service. The claims file must be made available to and reviewed by the examiner. The examiner must provide a complete rationale for all opinions offered and must specifically and thoroughly discuss the Veteran's contentions regarding his in-service experiences and their effect on his current symptomatology. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, Counsel 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.