Citation Nr: 1631543	
Decision Date: 08/09/16    Archive Date: 08/12/16

DOCKET NO. 11-27 329	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to service connection for a bilateral hearing loss disability.

2. Entitlement to service connection for hemorrhoids.

3. Entitlement to service connection for sleep apnea.

4. Entitlement to service connection for left ankle disability.

5. Entitlement to service connection for a right ankle disability.


REPRESENTATION

Veteran represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1991 to September 2001.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in April 2016, a transcript of which is in the electronic claim file.

The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

The issue of entitlement to service connection for a left ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran does not have disabling bilateral hearing loss for VA purposes.

2. Hemorrhoids were not manifest during service. Hemorrhoids are not related to service.

3. A right ankle disability was not manifest during service and arthritis was not manifest within one year of separation. A right ankle disability is not related to service.

4. Sleep apnea manifested in service.


CONCLUSIONS OF LAW

1. A hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015).

2. Hemorrhoids were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).

3. A right ankle disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).

4. Sleep apnea was incurred during wartime service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). 

Concerning service connection for sleep apnea, in light of the fully favorable decision herein, no further discussion of VA's duty to notify and assist as to that issue is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). The duty to notify and assist as to the other claims is discussed below.

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in March 2010, prior to the initial unfavorable adjudication in August 2010. As the letter contained all of the necessary information listed above, VA has met its duty to notify.

The VLJ clarified the issues, explained the concept of service connection, inquired as to the existence of evidence, and held the record open for 60 days for new evidence. The actions of the VLJ supplement the VCAA and comply with 38 C.F.R. § 3.103. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claims.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file.

VA requested private treatment records from St. Joseph's hospital in May 2010. 38 C.F.R. § 3.159(c)(1). In May 2010 correspondence the hospital indicated that no treatment records could be located, and therefore that further attempts to obtain the records would be futile. Id. In May 2010 correspondence, VA informed the Veteran of the records they attempted to obtain, the efforts made to obtain them, further actions VA was going to take on the claim, and that the Veteran was ultimately responsible for submitting the records. 38 C.F.R. § 3.159(e). Thus, VA made adequate attempts to obtain the records, and provided sufficient notice of their inability to do so to the Veteran. 38 C.F.R. § 3.159(c)(1), (e). 

All other released or submitted private treatment records have been associated with the claims file, including from Waters-Stuckert Medical Center, Dr. R. H., and Selby General Hospital. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, concerning the claim for bilateral hearing loss the Veteran was provided with a VA examination in August 2010. The examination was adequate because the examiner performed a controlled speech discrimination test (Maryland CNC), conducted puretone audiometry testing, and reviewed the claims file. 38 C.F.R. § 4.85; see Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Based on the foregoing, the Board finds the examination report to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's claim for service connection for a bilateral hearing loss disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Concerning the claims of service connection for a right ankle disability and hemorrhoids, in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

In this case, VA's duty to provide a medical examination with respect to the Veteran's claimed right ankle disability and hemorrhoids did not attach. The Veteran has asserted that he has been diagnosed with hemorrhoids and medical records show a diagnosis of right ankle mild degenerative joint disease (DJD). However, there is no lay or medical evidence of an in-service event, injury or disease to which these disabilities can be attributed. Service treatment records are silent for any notation of right ankle or hemorrhoid issues, or any complaints thereof. As there is no evidence of an in-service event, injury or disease, VA's duty to provide an examination or obtain a medical opinion as to these claimed disabilities did not attach. 

Since VA has obtained all relevant identified records and provided an adequate medical examination where necessary, its duty to assist in this case is satisfied.

II. Service Connection

Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system and arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system and arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3).

If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran contends he is entitled to service connection for a bilateral hearing loss disability, hemorrhoids, a right ankle disability, and sleep apnea. The Board will address each claim in turn, applying the legal framework outlined above.

A. Bilateral Hearing Loss Disability

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155, 157 (1993).

The Veteran has stated that he currently has bilateral hearing loss. While competent to report decreased hearing acuity, he is not competent to state his hearing loss meets the VA requirements to be considered disabling, as such a determination requires objective audiological testing. 38 C.F.R. § 3.385; see Jandreau, 492 F.3d at 1377. As the Veteran's statements concerning whether his hearing loss is disabling for VA purposes are not competent, they are assigned zero probative weight.

The Veteran was provided with a VA audiological examination in August 2010. The results of audiological examination were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
10
5
15
LEFT
15
0
10
10
20

Speech recognition was 100 percent in the right ear and 96 percent in the left ear, as measured by the Maryland CNC test.

Treatment records associated with the claims file generally reflect on-going audiological evaluation for bilateral hearing loss. A March 2013 audiology note indicated that there were no significant threshold shifts in either ear based on testing, that hearing was within normal limits bilaterally, and that speech discrimination was 100 percent in both ears. A January 2014 record indicates that on testing no threshold shifts were present and that hearing was within normal limits bilaterally. Finally, a January 2015 hearing consultation note indicated the Veteran's hearing was normal bilaterally, with no evidence of threshold shifts when compared with the August 2010 audiogram noted above. No further objective audiometric testing is of record.

Based on this medical evidence, the Veteran's bilateral auditory acuity is not considered a disability for VA purposes. The Veteran's hearing thresholds in either ear have at no point been measured to be 40 decibels or greater at frequencies of 500, 1000, 2000, 3000 or 4000 Hertz, nor have his auditory thresholds been 26 decibels or greater at any three of the measured frequencies. Finally, his speech recognition scores have at no point been less than 94 percent in either ear. As none of the necessary criteria have been met, the Board finds that the Veteran's bilateral hearing loss is not disabling for VA purposes. 38 C.F.R. § 3.385. As such, service connection for bilateral hearing loss cannot be granted on any basis. Brammer, 3 Vet. App. at 225; 38 C.F.R. §§ 3.303, 3.309.

The preponderance of the evidence weighs against a finding that the Veteran has bilateral hearing loss considered disabling for VA purposes. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

B. Hemorrhoids

The Veteran has reported that he has been diagnosed with hemorrhoids, which he is competent to report. Jandreau, 492 F.3d 1372. However, there is no evidence of an in-service event, injury or disease, or of a nexus between the disability and service. 

The Veteran has not provided any statements attributing the claimed hemorrhoids to any specific in-service event or injury. The Veteran's April 1996 medical examination, the last of record prior to discharge, is silent for any complaints or notations of hemorrhoids, and the Veteran denied any history of intestinal or rectal trouble on the corresponding report of medical history. The other treatment records are also silent for any complaints of hemorrhoids, or symptoms associated therewith, at any point during the Veteran's service.

VA and private treatment records associated with the claims file are silent for any diagnoses or complaints of hemorrhoids since the Veteran's separation from service in September 2001, and contain no opinions linking the claimed hemorrhoids to his active service. While the Veteran has generally asserted that his claimed hemorrhoids are related to service, he is not competent to provide a medical opinion concerning a causal relationship between service and his current disability. Jandreau, 492 F.3d 1372.

In short, there is no evidence of an in-service event, injury or disease, or of a nexus between the Veteran's claimed hemorrhoids and his service. As such, service connection for a right ankle disability is not warranted on a direct basis. 38 C.F.R. § 3.303. 

Although the Veteran has stated he has a diagnosis of hemorrhoids, the preponderance of the evidence weighs against a finding of an in-service injury, event or disease, or that the disability is causally related to a period of active service. Since the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. Therefore, the claim is denied.

C. Right Ankle

The medical evidence, specifically a November 2010 VA treatment record, shows that the Veteran has a current diagnosis of mild right ankle DJD. However, there is no evidence of an in-service event, injury or disease, or of a nexus between the current right ankle disability and service. 

The Veteran has not provided any statements attributing the claimed right ankle disability to any specific in-service event or injury. The Veteran's April 1996 medical examination, the last of record prior to separation, disclosed that the lower extremities were normal, and on the corresponding report of medical history the Veteran specifically denied any current or prior ankle or joint issues. Service treatment records are silent for any right ankle diagnoses or injuries during his active service.

VA and private treatment records associated with the claims file are silent for any opinions linking the claimed right ankle disability to any event or injury during the Veteran's active service. While some records note a history of in-service ankle injuries, these notations are simply repetitions of the Veteran's own reports and contentions, and do not constitute competent medical evidence of an in-service injury or a nexus. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). 

The first notation of right ankle issues is contained in a July 2010 VA treatment record, approximately nine years after the Veteran's separation from active duty. While the Veteran has generally asserted that his right ankle disability is related to service, he is not competent to provide a medical opinion concerning a causal relationship between service and his current disability, as to do so requires specialized medical expertise. Jandreau, 492 F.3d 1372. 

In short, there is no evidence of an in-service event, injury or disease, or of a nexus between the Veteran's claimed right ankle disability and his service. Indeed, the medical and lay evidence of record shows that there is no evidence or a right ankle issue or injury in service, and that a right ankle disability did not manifest until several years after service. As such, service connection for a right ankle disability is not warranted on a direct basis. 38 C.F.R. § 3.303.

Finally, the Board notes that DJD is a recognized chronic disease for VA purposes, and therefore service connection based on the presumption in favor of chronic diseases or continuity of symptomatology is potentially applicable. However, in this case arthritis was not noted during service and the Veteran did not have characteristic manifestations to identify any right ankle pathology. Further, the first notation of a right ankle disability in the post-service records is in July 2010, which is well outside the one year presumptive period. As such, service connection for a right ankle disability based on the presumption in favor of chronic diseases or continuity of symptomatology is not warranted here. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309.

Although there is evidence of a current right ankle disability, the preponderance of the evidence weighs against a finding of an in-service injury, event or disease, or that the right ankle disability is causally related to a period of active service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

D. Sleep Apnea

In this case, the medical evidence shows an initial diagnosis of sleep apnea in a January 2008 private treatment record, which was later confirmed by a May 2011 VA sleep study. The Veteran has reported persistent snoring and daytime sleepiness while in service, which he is competent to report. Jandreau, 492 F.3d 1372. The Veteran has also submitted additional lay statements from fellow service members, including his supervisor, and his wife, all of which state that while in service the Veteran snored loudly, suffered from daytime sleepiness and fatigue, and appeared to stop breathing in his sleep. As these statements all testify to symptoms that are observable by a lay-person third party, they are competent. Id. There is no evidence that any of these statements are not credible, and therefore they are entitled to probative weight concerning the presence of these symptoms in service.

In reviewing the evidence, the Veteran's service treatment records are silent for any complaints or diagnosis of sleep apnea. However, the records do reflect on-going weight gain during the Veteran's period of service, as well as numerous body fat percentage and weight checks. See, e.g., July 1991 and December 1992 service treatment records. 

Finally, the Veteran, his wife, and some of the other lay statements indicated that the symptoms, specifically severe snoring and pauses in breathing during sleep, have been persistent since service, which they are competent to report. Jandreau, 492 F.3d 1372. Turning to the medical evidence, VA obtained a medical opinion in November 2015. In that opinion, the physician stated that it was less likely than not that the Veteran's sleep apnea was related to active service, and was more likely caused by his progressive weight gain in the years following service. The examiner further noted that there was no diagnosis of sleep apnea in service, and that a formal diagnosis was not of record until 2011, which was well after service. However, the examiner did not appear to take into account the lay testimony of record concerning in-service symptoms of snoring, pauses in breathing during sleep or daytime sleepiness, nor the fact that the Veteran displayed increased weight gain in service.

The Veteran has submitted two private opinions. A September 2013 opinion noted first that the Veteran displayed progressive weight gain throughout his period of active duty service. The physician then further stated that while sleep apnea was not noted on the separation physical, it may have been present but not documented. The physician added that at the time there was a lack of medical emphasis on diagnosing and treating sleep apnea, which may have contributed to the lack of a diagnosis of sleep apnea in service.

The second opinion was submitted in June 2016. The physician indicated that, after a review of the Veteran's claims file, it was probably that sleep apnea was present in service, based on the Veteran's on-going weight gains in service and the lay statements concerning symptoms such as snoring in service. There is no evidence that the private or VA opinions are not competent or credible, and as they are based on a review of the record the Board finds they are all entitled to probative weight. Nieves-Rodriguez, 22 Vet. App. 295. 

The Veteran also submitted disabilities benefits questionnaires (DBQs) in February 2013 and October 2013. While containing diagnoses of sleep apnea, neither contained an opinion concerning the etiology of the disability. As such, they are of no probative weight. VA and private treatment records reflect on-going treatment for sleep apnea, with an initial diagnosis in January 2008. However, the records contain no opinions linking the Veteran's sleep apnea to his active duty service.

Based on the foregoing, the Board finds that the evidence establishes that the sleep apnea is related to active duty. The Board finds that the negative VA opinion of record is outweighed by the positive private opinions and the lay statements of record, which in conjunction establish that the Veteran experienced symptoms consistent with sleep apnea in service and that these symptoms have been persistent since. Therefore, the Board finds that service connection on a direct basis is warranted for sleep apnea, as it was incurred during the Veteran's wartime service. 38 C.F.R. § 3.303.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.

Entitlement to service connection for hemorrhoids is denied.

Entitlement to service connection for a right ankle disability is denied.

Entitlement to service connection for sleep apnea is granted.



REMAND

If VA undertakes to provide an examination, the examination must be adequate. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). In this case, the Veteran was provided with a left ankle examination in July 2010. In the examination report the examiner stated that it was less likely than not that the Veteran's current left ankle arthralgia was related to his in-service left ankle twisting injury. However, the examiner provided no rationale or underlying reasoning at all for this conclusion. As such, the July 2010 opinion is inadequate, and the Board must remand the claim for an addendum opinion as to whether the left ankle disability is causally related to active duty service.

Accordingly, the case is REMANDED for the following action:

1. Obtain an addendum opinion from the examiner who provided the July 2010 VA examination or another appropriate medical professional if the examiner is unavailable. If additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner should answer the following question:

Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's left ankle disability is related to his active duty service?

A detailed rationale for the opinion must be provided. Attention is invited to a March 1992 service treatment record noting a left ankle twisting injury and diagnosing a left ankle strain, and an August 1992 left ankle x-ray noted to be negative.

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case The Veteran and his representative should be afforded the applicable time period to respond.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs