Citation Nr: 1317909	
Decision Date: 06/03/13    Archive Date: 06/11/13

DOCKET NO.  09-11 132A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for low back degenerative joint disease.

3.  Entitlement to service connection for a traumatic brain injury. 

4.  Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty with the Army National Guard from February 2000 to December 2000, and from February 2003 to May 2004.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from July 2008 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  


FINDINGS OF FACT

1.  A hearing loss disability did was not "noted" at service entrance. 

2.  The Veteran experienced acoustic trauma in service. 

3.  The Veteran's right ear hearing loss meets the criteria for a hearing loss disability for VA compensation purposes.

4.  The Veteran experienced chronic symptoms of right ear hearing impairment in service 

5.  The Veteran experienced continuous symptoms of right ear hearing impairment after service separation.

6.  A right ear hearing loss disability did not manifest to a compensable degree within one year of service separation.

7.  The Veteran had chronic back symptoms of back pain in service and continuous symptoms of back pain since service separation. 

8.  Arthritis of the lumbar spine did not manifest in service or within one year of service separation.

9.  A currently diagnosed low back degenerative joint disease is related to service. 

10.  The Veteran engaged in combat with the enemy that included that his convoy was hit on two occasions during service.  

11.  There is clear and convincing evidence that the Veteran did not sustain an injury to the head, to include a traumatic brain injury, during the combat incidents in service, did not sustain any other head injury in service, and did not exhibit symptoms related to a claimed head injury during service.

12.  The Veteran does not have a currently diagnosed traumatic brain injury related to service. 

13.  The Veteran has currently diagnosed sleep apnea.

14.  The Veteran did not sustain an injury or disease related to sleep apnea in service, nor did he experience symptoms of sleep apnea in service.   

15.  Currently diagnosed sleep apnea syndrome is not related to service.


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for right ear hearing loss have been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 

2.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for low back degenerative joint disease have been met.  38 U.S.C.A. 
§§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).

3.  The criteria for service connection for a traumatic brain injury are not met.  
38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 

4.  The criteria for service connection for sleep apnea are not met.  38 U.S.C.A. 
§§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012).  The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 

The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; 
(2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. 

The Board is granting service connection for right ear hearing loss and low back degenerative joint disease.  Because this decision constitutes a full grant of the benefits sought on appeal with respect to those issues, the Board finds that no further action is necessary to comply with VCAA duties to notify and assist on those issues, and the Board will only address VCAA compliance as it pertains to the remaining issues of service connection for sleep apnea and a traumatic brain injury.  

In a February 2009 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection for sleep apnea and a traumatic brain injury on the merits, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain.  The February 2009 VCAA notice letter included provisions for disability ratings and for the effective date of the claim.  

The Veteran has not been afforded a VA medical examination with respect to service connection for sleep apnea and a claimed traumatic brain injury; however, the Board finds that a VA examination is not necessary in order to decide these issues.  VA must provide a VA medical examination when there is: 
(1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim.  See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

Because the weight of the evidence demonstrates that the Veteran had no in-service injury or disease related to sleep apnea, including no symptoms of sleep apnea in service, there is no duty to provide a VA medical examination.  Similarly, the Veteran has not provided credible evidence showing that he had a head injury in service, nor did he have any symptoms or complaints related to a head injury or traumatic brain injury in service.  Absent evidence of an in-service event, injury, or disease to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claims for service connection.  See 38 U.S.C.A. 
§ 5103A(a)(2) (West 2002); 38 C.F.R. § 3.159(d).

In the absence of evidence of an in-service disease or injury, or even in-service symptoms, referral of this case to obtain an examination and/or an opinion as to the etiology of sleep apnea or a traumatic brain injury would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value.  In other words, any medical opinion which purported to provide a nexus between current sleep apnea or a traumatic brain injury and service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value.  The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value.  See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination).

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes service treatment records, Social Security Administration (SSA) records, VA examinations and opinions, VA and private treatment records, and the Veteran's statements.  The Veteran and his representative have not identified any outstanding evidence that needs to be obtained.  For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 


Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 
see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 
7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  

Sleep apnea and a claimed traumatic brain injury are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to those claims.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In this case, arthritis and sensorineural hearing loss are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) do apply to those claims.  Id.  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  

Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis and organic disease of the nervous system (which includes sensorineural hearing loss), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).

A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002).  Thus, veterans are presumed to have entered service in sound condition as to their health. 

This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 
38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id. at (b)(1). 

Where the presumption of soundness attaches (where it was not "noted" at entrance into service), in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service, and there must also be clear and unmistakable evidence that the disorder was not aggravated by service.  See 38 C.F.R. § 3.304(b).  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003. 

If it is established through military citation or other supportive evidence that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(2).  Where a veteran engaged in combat with the enemy while in active service, lay evidence shall be accepted as proof of in-service incurrence or aggravation.  See 
38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  See also Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  A veteran's assertions regarding an injury during combat shall be accepted if consistent with the circumstances of such service.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  

VA's General Counsel has interpreted that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality."  VAOPGCPREC 12-99.  The VA General Counsel also indicated that the determination of whether a veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that he did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that he did not engage in combat.  Id.  

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40   (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 
1 Vet. App. 190, 193 (1991).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  
See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 
11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

 Analysis of Service Connection for Right Ear Hearing Loss

The Veteran claims that service connection is warranted for right ear hearing loss.  (The Veteran has only appealed the denial of service connection for right ear hearing loss in this case).  He contends in an April 2009 substantive appeal that exposure to loud noises of heavy artillery explosives, helicopters, and ordinance explosives were the cause of the right ear hearing loss.  After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that a right hearing loss disability did not preexist service, that the Veteran was exposed to acoustic trauma in service, experienced chronic symptoms of right ear hearing impairment in service and continuous symptoms of right ear hearing impairment after service separation. 

The Board finds that a right ear hearing loss disability was not "noted" at service entrance and the evidence is not clear and unmistakable that a right ear hearing loss disability preexisted service.  Service treatment records include a January 1999 enlistment audiological evaluation, to include a reevaluation completed the same day, and a February 2000 audiological evaluation.  Service treatment records do not include a separation audiogram or audiograms from the Veteran's second period of service from February 2003 to May 2004.  

On the authorized January 1999 enlistment audiological evaluation, puretone thresholds for the right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
15
15
50

Upon reevaluation in January 1999, puretone thresholds for the right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
15
10
20

While initial testing on enlistment indicated hearing impairment at 4000 Hertz of 50 decibels in the right ear, which is in excess of 20 decibels considered within the normal range (see Hensley, 5 Vet. App. 155), on retesting in the January 1999, the right ear hearing loss disability in excess of 20 decibels at the 4000 Hertz was not indicated.  Moreover, subsequent findings from a February 2000 audiological evaluation reflect hearing impairment at 4000 Hertz that is within the normal range, which is consistent with reevaluation scores in January 1999.    

On the authorized audiological evaluation in February 2000, puretone thresholds for the right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
20

Reconciling these findings, the Board finds that such findings reflect that the hearing impairment at 4000 Hertz of 50 decibels in the right ear first recorded in 1999 was not permanent hearing loss; rather, the right ear hearing loss was within normal ranges at the time of service entrance.  

Because a hearing loss in outside the normal range was not noted on a January 1999 enlistment examination and was not "noted" at the time of the Veteran's service entrance in February 2000, and because an audiological evaluation was not completed when the Veteran was mobilized for active duty during his second period of service in February 2003, the Board finds that it is not clear and unmistakable that a right ear hearing loss disability preexisted service; therefore, the presumption of soundness for right ear hearing at service entrance attached.  See 38 U.S.C.A. 
§ 1111 (West 2002).  A right ear hearing loss disability is not shown to have been diagnosed or treated prior to service.  There is also no medical board or other medical opinion tending to show preservice hearing loss disability.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  As such, the Board finds that the Veteran was in sound condition with respect to hearing in the right ear when he entered service.  Having determined that the Veteran's right ear hearing was sound at entrance, the Board must determine if a currently diagnosed right ear hearing loss disability was incurred in service. 

The Board finds that the Veteran experienced acoustic trauma in service.  The Veteran's DD Form 214 shows that he served as a Military Police officer in service.  The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that individuals with a duty MOS of "Military Police" had a moderate probability of exposure to hazardous noise in service.  Additionally, the Veteran has described exposure to noise from heavy artillery explosives, helicopters, and ordinance explosives in service.  

Service treatment records show that on an April 2004 post-deployment health assessment, completed at the time of separation from service, the Veteran reported that he was often exposed to loud noises while he was deployed.  A January 2005 VA audiology consult shows that the Veteran reported, shortly after service separation, that his right ear felt deadened and full since September or October 2003 when a nearby team in Iraq detonated an unexploded device.  During a May 2008 VA examination, the Veteran reported that while in service, a convoy he was in came under attack and the hummer in front of him was hit.  He reported that the explosion was tremendous and he left that this may have had an impact on his hearing.  The Veteran is competent to describe noise exposure and symptoms related hearing loss in service.  The Board finds that the Veteran's statement with regard to exposure to acoustic trauma in service, to include being in close proximity to an explosion, and having associated symptoms related to right ear hearing impairment in service is credible as it is consistent with the circumstances of his service and is consistent with a contemporaneous statement made in service and statements made in conjunction with his treatment for hearing loss post-service.  Based on the foregoing, the Board finds that the Veteran was exposed to acoustic trauma in service.

While an audiological examination was not completed at the time of separation from service, the evidence in this case shows that a right ear hearing loss disability under 38 C.F.R. § 3.385 was diagnosed within one year of the Veteran's separation from service.  VA treatment records include a March 2005 audiological evaluation.  On a March 2005 VA audiological evaluation, puretone thresholds for the right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
35
70

Based on the March 2005 audiological data, the Board finds that right ear hearing loss did not manifest to a compensable degree within one year of service separation.  See 38 C.F.R. §§ 4.85, 4.86 (2012).  The Board finds, however, that symptoms of right ear hearing impairment were chronic in service and continuous after service separation.  The Veteran has reported experiencing symptoms related to hearing loss in service and since service during an initial January 2005 VA audiology consultation and during a May 2008 VA examination, and the Board finds that the Veteran's statements are credible.  The Veteran's statements tend to be supported by objective findings at a March 2005 VA post-service audiogram that shows that the Veteran met the criteria for a right ear hearing loss "disability" under 38 C.F.R. § 3.385 within one year of separation from service.  

The Board finds that symptoms of right ear hearing loss have been continuous since service.  On a November 2006 VA audiological evaluation, puretone thresholds for the right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
20
65


On the February 2007 VA audiological evaluation, puretone thresholds for the right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
20
30
75

During a May 2008 VA examination, puretone thresholds for the right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
15
25
70

Speech audiometry in May 2008 revealed speech recognition ability of 92 percent in the right ear.  Audiometric data from a May 2008 VA examination shows that the Veteran's right ear hearing loss meets the criteria for a right ear hearing loss disability for VA compensation purposes.  See 38 C.F.R. § 3.385.  The Board finds that the Veteran has provided credible lay evidence with regard to experiencing symptoms related to right ear hearing impairment in service, and VA audiological evaluations show symptoms or right ear hearing loss have been continuous since service.  38 C.F.R. § 3.303(b). 

While a valid nexus opinion was not rendered in this case, one is not necessary in this case because the evidence shows that "chronic" in-service symptoms and "continuous" post-service symptoms of sensorineural hearing loss have been demonstrated to warrant a grant of presumptive service connection under 38 C.F.R. § 3.303(b).  A VA examiner in May 2008 stated that, because there were no hearing records found during active service from February 2003 to May 2004, an appropriate opinion as to etiology could not be made without resorting to mere speculation.  The VA examiner noted that a hearing evaluation in January 1999 indicated moderate high frequency hearing loss at 4000 Hertz in the right ear, but did not discuss results from reevaluation in January 1999, so did not consider the accurate facts.  The Board finds that the May 2008 VA opinion is of little probative value, as the examiner did not consider the results from a second audiological reevaluation in January 1999, did not address VA audiometric data dated shortly after service separation, and did not ultimately include an opinion with regard to etiology of right ear hearing loss.  

Because the evidence of record, lay and medical, shows that right ear hearing loss symptoms were chronic in service and continuous since service separation without any intervening causes indicated, and resolving reasonable doubt in the Veteran's favor, the Board finds that under 38 C.F.R. § 3.303(b) service connection for right ear hearing loss may be presumed as having been incurred during service.  
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Analysis of Service Connection for Low Back Degenerative Joint Disease

The Veteran claims that service connection is warranted for low back degenerative joint disease.  During a May 2009 VA examination, he reported that he injured his back after falling off the top of a Humvee during service.  In a February 2010 substantive appeal, he contends that his back disability was the result of his convoy being hit twice in service.  

After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the Veteran experienced chronic symptoms of back pain in service and continuous symptoms of back pain after service separation, and that current low back degenerative joint disease is etiologically related to service. 

Service treatment records do not reflect any specific injury to the back in service.  In a March 2004 post-deployment health assessment, the Veteran did not mark "yes" or "no" in response to a question asking whether he had back pain currently or during deployment, but left the spaces blank.  A report of medical history associated with an April 2004 separation examination, however, shows that the Veteran reported having a history of recurrent back pain, explaining that he had pain in the lower back present since August 2003 with no treatment to the back.

Due to inconsistencies in the Veteran's reports, the Board finds that the Veteran has not provided credible lay evidence describing the nature of a back injury in service.  In that regard, the Veteran reported during a May 2009 VA examination that he injured his back after falling off the top of a Humvee and specifically denied other incidents of injury while in service.  While service treatment records clearly document a fall off a Humvee in August 2003, in an August 2004 sworn statement associated with service treatment records, the Veteran reported that he injured his right foot during while dismounting his weapon from the gunner mount on his Humvee in August 2003.  He specified that at the time of this incident he lost his footing from the top of the Humvee and landed off balance on his right foot, but made no mention of a back injury at that time.  

The Board finds, additionally, that the Veteran's report of injuring his back when he fell off of a Humvee is inconsistent with his later February 2010 assertion that he injured his back when his convoy was hit with explosives, particularly since he denied any other incidents of injury to the back during the May 2009 VA examination.  Service treatment records do not indicate a specific injury to the back at any time in service.  In reports describing the incident in which his convoy was hit, provided during the course of VA medical treatment and during a May 2008 VA audiological examination, the Veteran did not identify any physical injury that occurred.  In that regard, during the course of psychiatric treatment in January 2006, the Veteran reported that while his convoy was hit twice in service, most of the damage was to the vehicle.  During a May 2008 VA audiological examination, the Veteran reported that while in service, a convoy he was in came under attack and the Hummer in front of him was hit, without identifying any specific injury to himself (other than acoustic trauma).  Due to the inconsistencies in the Veteran's statements with findings from service treatment records, internal inconsistencies shown in his reports, and the lack contemporaneous medical evidence showing a specific injury to the back in service as one more factor for consideration, the Board finds that the Veteran has not been credible in describing the nature of a back injury in service.  See Caluza, 7 Vet. App. at 498; Buchanan, 451 F.3d at 1331.

While the Veteran has not provided credible evidence regarding the nature of a back injury in service, the Board finds, nonetheless, that a report of medical history associated with an April 2004 separation examination provides credible and probative evidence showing that the Veteran had chronic symptoms of back pain from August 2003 to the time of his separation from service.  Because the report of medical history was provided contemporaneous to service and was not provided for compensation purposes, as the Veteran did not file his claim for a back disability until February 2009, the Board that the Veteran's statements made during this time were credible and the Board finds that the report provides highly probative evidence showing that symptoms of low back pain were "chronic" in service to warrant presumptive service connection for the same symptoms that were later diagnosed as degenerative joint disease.  38 C.F.R. § 3.303(b) (with a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes).  

The Board also finds that symptoms of low back pain were continuous after service separation.  VA treatment records show that the Veteran was treated for complaints of atraumatic low back pain in November 2006, present for approximately three months.  In March 2007, the Veteran reported a chronic history of back pain, three or four years in duration, with occasional exacerbations.  He denied any trauma or injury to the back, and was assessed with back pain due to degenerative changes.  The Veteran continued to be seen for back pain from 2008 to present.  In January 2008, the Veteran reported having back pain and reported carrying a heavy belt at home.  A past 2006 VA x-ray was reviewed which revealed degenerative changes in the lumbar spine.  Because degenerative changes in the lumbar spine were not identified until 2006, the Board finds that arthritis of the lumbar spine did not manifest in service or to a compensable degree within one year of service separation.  See 38 C.F.R. § 3.309(a).

The Board finds that statements identifying a history of exacerbations of back pain without specific injury or trauma to the back dating back to approximately 2003 or 2004, provided during the course of VA treatment, are credible and probative as they were made for treatment purposes and not in conjunction with a claim for compensation.  Additionally, the Veteran had x-ray evidence of degenerative changes in the lumbar spine in 2006, just two years after service separation with increasing complaints of back pain over time.  Based the foregoing, the Board finds that symptoms of back pain were chronic in service and continuous since service separation.  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  38 C.F.R. § 3.303(b).  

While a valid nexus opinion was not rendered in this case, one is not necessary in this case because the evidence shows that "chronic" in-service symptoms and "continuous" post-service symptoms of degenerative arthritis of the lumbar spine have been demonstrated to warrant a grant of presumptive service connection under 38 C.F.R. § 3.303(b).  The Veteran was afforded a VA examination to address his lumbar spine disability in May 2009.  The Veteran was diagnosed with back pain due to degenerative arthritis of the lumbar spine.  The May 2009 VA examiner opined that the Veteran's current back pain was less likely as not a result of back pain or incident in service, reasoning that back pain was noted once in service without an examination, that there were numerous annual notes that made no mention of back pain in service, and VA treatment notes showed that there was no mention of back pain until January 2008.  

While the Board finds that the May 2009 VA examination provides probative medical evidence showing that the Veteran's symptoms of low back pain are due to degenerative arthritis, the Board finds that the medical opinion offered is of little probative value as it was not based upon a fully accurate factual premise.  In his reasoning, the VA examiner failed to consider that the notation of back pain in service was made at the time of the Veteran's separation examination and failed to address that the report identified chronic back pain for over seven months duration since August 2003.  The VA examiner also failed to address VA treatment reports which reflect a history of exacerbations of back pain shown in 2006 and 2007 and x-ray evidence of degenerative changes in 2006.  For these reasons, the Board finds that the May 2009 VA opinion is not probative.  See Reonal, 5 Vet. App. at 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion").  

Because the weight of the evidence shows that the Veteran experienced chronic symptoms of back pain in service and continuous symptoms of back pain after service separation, without any intervening causes indicated, the Board finds that low back degenerative joint disease is etiologically related to service.  Resolving reasonable doubt in the Veteran's favor, the Board finds that under 38 C.F.R. § 3.303(b) service connection for low back degenerative joint disease may be presumed as having been incurred during service.  38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102. 

Analysis of Service Connection for Traumatic Brain Injury

The Veteran contends in a February 2010 substantive appeal that a claimed traumatic brain injury was the result of his convoy being hit twice in service.  

The Board finds, initially, that the evidence is in equipoise on the question of whether the Veteran engaged in combat with the enemy as reported when his convoy was hit on two occasions during service.  The Veteran's DD Form 214 shows that he served in Iraq and Kuwait in support of Operation Enduring Freedom from June 2003 to March 2004.  Although not listed on the DD Form 214, in the grant of service connection for PTSD, VA indicated that in the service medical records there was evidence of receipt of a Combat Action Ribbon during service.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  On the other hand, a March 2004 post-deployment health assessment shows that the Veteran denied engaging in direct combat with the enemy, yet he does report on several occasions that his convoy was hit on two occasions.  Resolving reasonable doubt in the Veteran's favor on this question, the Board finds that the Veteran engaged in combat with the enemy as reported when his convoy was hit on two occasions during service, and the evidentiary presumption of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) applies.  See VAOPGCPREC 12-99. 

The Board finds that, while the Veteran's convoy was hit on two occasions during service, the evidence is clear and convincing that he did not injure his head during these incidents.  The Veteran does not even allege that he injured his head in combat on these two occasions, but states instead that his convoy was hit on two occasions in service.  Service treatment records do not show that the Veteran had a head injury, including a traumatic brain injury in service.  While the Veteran was in close proximity to explosions in service when his convoy was hit, the Board finds that he did not have head injury in service and there was no treatment for loss of consciousness, concussion, or cognitive deficits at any time in service.  

The Board finds that the evidence is clear and unmistakable that the Veteran did not sustain an injury to the head, to include a traumatic brain injury, in service when his convoys were hit.  The Veteran has not described any specific incident of head injury in service, or identified any related symptomatology; instead, he routinely references the convoy hits without indicating there was a head injury or trauma.  Service treatment records do not identify any head injury in service.  An April 2004 service separation examination, which was conducted contemporaneous to service and elicited a history from the Veteran, does not reflect any history of head injury or complaints or findings to indicate traumatic injury of the head, face, neck and scalp was normal.  Neither the service treatment records nor the Veteran's own assertions indicate that there were any symptoms during service.  While the Veteran clearly identified a history of back pain since August 2003 in service on a report of medical history completed in conjunction with his separation examination, on the same report of medical history, the Veteran specifically denied having any history of a head injury or current head injury.  The Board finds that the denial of having a history of head injury at the time of service separation, in this context, is highly probative, contemporaneous evidence that the Veteran did not experience a traumatic brain injury in service.  

In support of his claim for a traumatic brain injury, the Veteran only reports, generally, that his convoy was hit in service but does not describe an injury to the head.  He reported during the course of VA psychiatric treatment in January 2006 that, while his convoy was hit twice in service, most of the damage was to the vehicle.  During a May 2008 VA audiological examination, the Veteran reported that while in service a convoy he was in came under attack and the hummer in front of him was hit.  He reported that the explosion was tremendous and he left that this may have had an impact on his hearing but did not describe any direct injury, or injury to the head.  

Only more recently does the Veteran assert that service connection is warranted for a traumatic brain injury.  While VA treatment records show that the Veteran was referred for evaluation of a traumatic brain injury in 2008, the Board finds, significantly, that VA TBI evaluations do not describe any history of specific head injury in service, nor do they confirm a currently diagnosed traumatic brain injury related to service.  The Board finds that the Veteran's more recent assertions that he had a traumatic brain injury in service are inconsistent with, and outweighed by, other lay and medical evidence of record, to include service treatment records, which do not reflect any head injuries in service, and more significantly show both during service and after service the Veteran denied having any head injuries in service.  For these reasons, the Board finds that the Veteran's assertion that he had a traumatic brain injury in service is outweighed by the other, more contemporaneous lay and medical evidence of record, and is not credible; the evidence is clear and convincing that there was no head injury associated with the two attacks on the convoy during service.  See Caluza, 7 Vet. App. at 511; see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005).

For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that traumatic brain injury was not incurred in service, including during combat in service.  For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a traumatic brain injury, the claim must be denied, and the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

Analysis of Service Connection for Sleep Apnea

The Veteran contends that service connection is warranted for sleep apnea.  After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence demonstrates that currently diagnosed sleep apnea syndrome was not incurred in service.  The Board finds that the Veteran has currently diagnosed sleep apnea syndrome, as evidenced by VA and private treatment records dated from October 2007 to present.  The Board finds, however, that the Veteran did not sustain an injury or disease which can be related to sleep apnea in service, nor did he exhibit symptoms of sleep apnea in service.  

The Veteran has not reported the presence of any sleep apnea symptoms in service, and service treatment records do not reflect any complaints related to sleep apnea in service.  The Veteran was treated for currently service-connected asthma in service; however, the Veteran had no other respiratory complaints in service.  At the time of the separation from service, he made no mention of sleep apnea.  

Sleep apnea was first diagnosed by VA through a sleep study in August 2007, three years after service separation.  A July 2007 VA pulmonary/sleep medicine consultation shows that the Veteran was evaluated for possible sleep apnea.  A sleep study was completed in August 2007 and the Veteran was diagnosed with sleep apnea.  He was put on a CPAP in September 2007.  All the Veteran's sleep apnea complaints, treatment, and diagnoses as shown by the record were made after the July 2007 VA pulmonary/sleep medicine consultation and August 2007 diagnosis.  The Board finds that such absence of complaints, findings, or treatment during service or post-service until sleep apnea was diagnosed in August 2007 is highly probative, contemporaneous evidence, along with other factors, showing that sleep apnea did not manifest in service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Buchanan, 451 F.3d at 1337.  

The Board finds that the weight of the evidence demonstrates that currently diagnosed sleep apnea is not otherwise related to service.  The Veteran has not attested to the presence of sleep apnea symptoms in service or shortly after service 

separation and the record contains no evidence indicating a link between currently 
diagnosed sleep apnea in service.  Sleep apnea is defined as "transient periods of cessation of breathing during sleep."  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 118 (31st ed. 2007).  While the Veteran is competent to report the symptoms that he is able to observe through his senses, he has not identified the presence of sleep apnea symptoms in service.  Insomuch as the Veteran contends that service connection is warranted for sleep apnea, the Board finds that the Veteran is not competent to offer an opinion as to the etiology of a diagnosed disorder as complex as sleep apnea, which requires medical expertise and specific clinical testing in the form of a sleep study by a trained professional other than the sleeping subject being studied and diagnosed.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)."  A complex disorder such as sleep apnea, that requires the observations and assessments of medical professionals while the subject is asleep, is too complex a disorder that requires special testing to diagnose so a lay person is not competent to diagnosis.  Here, VA treatment records clearly show that sleep apnea was not diagnosed until August 2007 via a sleep study.

For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that sleep apnea was not incurred in service.  The preponderance of the evidence is against a finding of an injury, disease, or even symptoms related to sleep apnea in service, and a nexus has not been established between the current sleep apnea and service.  For these reasons, the Board finds that a preponderance of 

the evidence is against the claim for service connection for sleep apnea, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. 
§ 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for right ear hearing loss is granted.

Service connection for low back degenerative joint disease is granted.

Service connection for a traumatic brain injury is denied. 

Service connection for sleep apnea is denied.




____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs