Citation Nr: 1638847 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 10-13 727A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Service connection for multiple explosion residuals, including traumatic brain (TBI) residuals, headaches, and scar residuals of the bilateral upper and lower extremities and face. 2. Service connection for sleep apnea, claimed as a TBI residual. 3. Service connection for left ear hearing loss, claimed as a residual of in-service explosion. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1967 to November 1970, and from November 1972 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction over this claim is currently with the RO in New Orleans, Louisiana. The Board has reviewed both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to ensure a total review of the evidence. In August 2014, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is located in the Veteran's electronic file on "Virtual VA." In October 2014, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development. In August 2015, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in neurology with regard to the claim of service connection for multiple explosion residuals, including headaches, TBI residuals, and scar residuals of the bilateral upper and lower extremities and face. In November 2015, the requested VHA opinion was incorporated into the record. In November 2015,, the Veteran and his representative were provided with a copy of the VHA opinion. In February 2016, the Board remanded this matter the AOJ for readjudication of the issues on appeal. This was accomplished, and the Board finds that the AOJ substantially complied with the February 2016 Board remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). While the February 2016 Board decision did not list the issues of sleep apnea and left ear hearing loss, these issues were raised by the record as potential residuals of a TBI, and an in-service explosion, respectively. In this case, the Board is granting service connection for TBI, headaches, and facial scars as residuals of in-service explosion, denying service connection for sleep apnea, and remanding the issue of service connection for left ear hearing loss. Accordingly, the Board has bifurcated the issue on appeal (residuals of in-service explosion) into three separate issues as listed on the Title page. The issue of service connection for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran has current disabilities of TBI, headaches, and facial scars. 2. The Veteran was exposed to an explosion during service. 3. The current TBI, headaches, and facial scars are residuals of the in-service explosion, so were "incurred in" service. 4. The Veteran has a current disability of sleep apnea. 5. The current sleep apnea is not a TBI residual. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for multiple explosion residuals of TBI, headaches, and facial scars, are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). 2. The criteria for service connection for sleep apnea, claimed as a TBI, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, the Board is granting service connection for multiple explosion residuals, including TBI, headaches, and facial scars, which constitutes a full grant of the benefit sought on appeal with respect to this issue. As there remains no aspect of this issue to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the claim for service connection for sleep apnea as a TBI residual, in November 2009 and March 2010 notice letters sent prior to the initial denial of the claim for service connection for TBI residuals in May 2010, the RO notified the Veteran about the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. As to the duty to assist, the Board finds that VA has satisfied its duties to assist the Veteran. 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 the service treatment records, post-service treatment records, the relevant VA examinations reports, the August 2014 Board hearing transcript, and the Veteran's written statements. With respect to the claim for service connection for sleep apnea, VA obtained a VA opinion in February 2015, and a VHA opinion in November 2015. The Board finds that the above-referenced examination report and opinion are adequate for purposes of deciding the claim for service connection for sleep apnea as a TBI residual. The VA and VHA examiners reviewed the Veteran's medical history and complaints, made clinical assessments and observations, and rendered opinions regarding the etiology of the sleep apnea disability. The VA examiner also interviewed the Veteran regarding past and present symptomatology. The VA examination report and VHA opinion contain all the findings needed to decide the claim for service connection for sleep apnea as a TBI residual, including the Veteran's history and a rationale for all opinions given. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Authority Under the relevant 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, 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the Veteran has been diagnosed with obstructive sleep apnea, which is not a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a) do not apply to the claim for service connection for sleep apnea. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). In rendering a decision on appeal the Board must 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"). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09 (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Notwithstanding the above, however, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Jandreau at 1376-77. 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). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000);Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for TBI, Headaches, and Facial Scars The Veteran contends that he has current residuals as a result of multiple explosions he experienced in service, including a blast from a bomb, an improvised explosive device (IED), and mortar and grenade explosions. Specifically he contends that he lost consciousness when he fell from the blast of a bomb in March 1969. The Veteran reports that since then he has experienced headaches and scar residuals of the bilateral upper and lower extremities and face. See, e.g., November 2009 VA Form 21-4138; June 2010 VA Form 21-4138; November 2011 VA Form 21-4138; October 2013 VA Form 9; March 2015 Veteran statement. The Board finds that the Veteran has current disabilities of TBI, headaches, and facial scars. The April 2010 and February 2015 VA examination reports show a diagnosis of TBI; the February 2015 VA examination report shows a diagnosis headaches; and the January 2012 VA examination report shows an assessment of facial scars. The VHA examiner opined that the Veteran had a TBI. While the Veteran originally claimed service connection for scar residuals of the upper and lower extremities, the Veteran confirmed that he only has facial scars, and does not have any residual scars on the upper or lower extremities. See March 2011 VA Form 21-4138. The medical evidence, specifically the January 2012 VA examination report, also shows no residual scars on the upper or lower extremities. Accordingly, the Board finds only facial scars to b a residual of the in-service explosion. The Board finds that the Veteran was exposed to an explosion during service. The evidence weighing in favor of this finding includes the Veteran's statements that he was involved in an explosion in March 1969. The Veteran also submitted lay statements from R.M. and W.V., who reported that they served with the Veteran in Vietnam, that they witnessed the March 1969 explosion, and that the Veteran was close to the explosion. The DD Form 214 reflects receipt of the Combat Infantryman Badge. The Board finds that the Veteran's competent lay account of his duties in service and exposure to an explosion are consistent with the circumstances, conditions, and hardships of his service and are, therefore, credible. See 38 U.S.C.A. § 1154 (b); 38 C.F.R. § 3.304(d); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds that the evidence is in relative equipoise on the question of whether the current TBI, headaches, and facial scars are residuals of the in-service explosion so as to be directly "incurred in" service. The evidence weighing in favor of this finding includes the Veteran's assertions that he has had headaches and facial scars since the in-service explosion, and the February 2015 VA examiner's indication that headaches are attributable to TBI. The evidence weighing against this finding includes the January 2012 VA examiner's opinion, and April 1975, December 1977, and September 1983 periodic examinations during service, as well as the July 1992 service separation examination, showing normal clinical evaluations of the head and face, no indication of facial scars, and a normal neurological evaluation. While the July 1992 service separation examination noted an abdomen scar, it did not include any reference to any facial scars. The July 1992 report of medical history at service separation shows that the Veteran denied current symptoms or a history of head injury, and made no reports of any scars. The January 2012 VA examiner opined that the facial scars are less likely than not incurred in or caused by service. In reaching this conclusion, the January 2012 VA examiner reasoned that the in-service physical examinations dated April 1976, December 1977, September 1983, and July 1992 showed no mention of any facial scars. The January 2012 VA examiner noted that the facial scars are vertical, almost surgically straight and thin, and all are on the forehead, which is not consistent with a fall onto the face in Vietnam; however, the January 2012 VA examiner did not otherwise indicate or opine as to the etiology of the facial scars or suggest to what they are attributable. There is no indication in the record that the Veteran underwent any facial surgeries after service that would account for the facial scars. Resolving reasonable doubt in the Veteran's favor on this question, the Board finds that the current TBI, headaches, and facial scars are residuals of the in-service explosion, so were directly "incurred in" service. 38 C.F.R. § 3.303(a), (d). For the reasons discussed above and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for multiple explosion residuals of TBI, headaches, and facial scars is warranted as directly incurred in service. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). Because the Board is granting service connection on a direct basis, all other theories of entitlement to service connection for these disabilities are rendered moot. Service Connection for Sleep Apnea The Veteran contends that service connection for sleep apnea is warranted because it is a TBI residual. See, e.g., December 2015 Veteran statement. The Veteran does not contend that sleep apnea started in service or that it is otherwise etiologically related to service. The Board finds that the Veteran has a current disability of sleep apnea. An August 2011 private sleep study shows a diagnosis of obstructive sleep apnea. The Board finds that the weight of the lay and medical evidence demonstrates that the sleep apnea is not a residual of TBI/explosion injury in service. The February 2015 VA examiner specifically opined that the Veteran's sleep apnea is not a residual of TBI. In reaching this conclusion, the February 2015 VA examiner reasoned that, while it is "possible" that the Veteran had central sleep apnea due to TBI, this would likely have presented much earlier in this Veteran's case than it presented. The February 2015 VA examiner identified a more likely etiology, opining that the Veteran's current sleep apnea is likely due to (non-service-related) weight gain. A November 2015 VHA examiner also opined that that it is doubtful that a TBI would cause obstructive sleep apnea, and that it is more likely that the Veteran's sleep apnea is related to an increased in body mass index (BMI) over the years. The Board finds that, taken together, the February 2015 VA examination and November 2015 VHA opinion reports are highly probative with respect to service connection for sleep apnea, as the opinions are based on objective findings as shown by the record, are based upon a full and accurate factual premise that includes the Veteran's lay history, and the examiners provided a rationale for the opinions given. See Stegall, 11 Vet. App. 268; Barr, 11 Vet. App. at 311; Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In this case, the February 2015 VA examiner and November 2015 VHA examiner specifically attributed the Veteran's sleep apnea to his non-service-related post-service increased BMI. While the Veteran provided internet articles purporting to show that sleep disturbance is common among TBI patients, the internet articles are general in nature, are not case specific, and do not take into account the Veteran's history of non-service-related increased BMI. Therefore, the Board finds that the February 2015 VA examination and November 2015 VHA opinion reports are more probative than the internet articles in that they provide competent, credible, and probative evidence that shows that currently-diagnosed sleep apnea is not a residual of the TBI. Because the preponderance of the evidence is against finding that the currently-diagnosed sleep apnea is a residual of the Veteran's TBI, the preponderance of the evidence is against the claim for service connection for sleep apnea, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for multiple explosion residuals of TBI, headaches, and facial scars is granted. Service connection for sleep apnea, as a residual of TBI, is denied. REMAND Service Connection for Left Ear Hearing Loss Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide a claim. 38 C.F.R. § 3.159(c)(4)(i). The duty to assist claimants with developing their claims extends to ensuring that testing recommended by VA examiners is conducted. See Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991). In this case, with respect to service connection for hearing loss as a residual of the in-service explosion, the November 2015 VHA examiner recommended that an otolaryngologist review the service discharge audiogram and subsequent audiograms. The July 2009 and April 2010 VA audiology examination reports show left ear hearing loss for VA compensation purposes. 38 C.F.R. § 3.385 (2015). The Veteran is already service connected for right ear hearing loss. Therefore, the Board finds that a remand for an opinion by an otolaryngologist is warranted to help resolve the question of whether the left ear hearing loss disability is related to the same in-service loud noise exposure, including acoustic trauma from the explosion, that caused the already service-connected right ear hearing loss. Accordingly, the issue of service connection for left ear hearing loss is REMANDED for the following actions: 1. Obtain an opinion from a VA otolaryngologist regarding the etiology of the current left ear hearing loss. The relevant documents in the record, especially the service discharge and subsequent audiograms, should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. If an examination is required, a detailed history of relevant symptoms should be obtained from the Veteran. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner is requested to provide the following opinion: Is it as likely as not (i.e., probability of 50 percent or more) that the current left hearing loss disability was caused by, or is otherwise related to, the in-service explosion? The examiner should assume as credible the Veteran's description of the in-service explosion, and that this explosion occurred. The examiner should also note that the Veteran is service connected for right ear hearing loss, and discuss the significance of the acoustic trauma, including whether the same acoustic trauma that caused the right ear hearing loss also caused left ear hearing loss. 2. Thereafter, the issue of service connection for left hearing loss should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and representative should be provided with a supplemental statement of the case (SSOC). 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2014). 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). ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs