Citation Nr: 1754859 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 16-53 325A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for left ear hearing loss. 5. Entitlement to service connection for obstructive sleep apnea. 6. Entitlement to service connection for an acquired psychiatric disability, to include an adjustment disorder, anxiety disorder, persistent depressive disorder, and posttraumatic stress disorder (PTSD). 7. Entitlement to service connection for a right hip disability, to include as secondary to a back disability. 8. Entitlement to service connection for a left hip disability, to include as secondary to a back disability. 9. Entitlement to service connection for a left knee disability, to include as secondary to a back disability. REPRESENTATION Appellant represented by: Eric A. Gang, Attorney ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran had active service from July 1989 to July 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2015 and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In his October 2016 substantive appeal, the Veteran reported an intent to testify at a videoconference hearing before the Board. In September 2017, the Veteran withdrew his request for a hearing before the Board. In a September 2017 statement, the Veteran's attorney requested that the case be held in abeyance for the full 90 day period from the date his case was transferred to the Board. Nevertheless, in a subsequent email the Veteran requested that his case be expedited due to his hardship. As such, the Board finds that his request for abeyance has been revoked. Further, the Board finds no prejudice to the Veteran in proceeding with consideration of his case at this time, as those issues adjudicated will all be granted. The Board notes that the RO adjudicated the Veteran's service connection claim for an acquired psychiatric disability as one for depression. The Veteran has now additionally claimed service connection for PTSD. His treatment records reflect additional diagnoses. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, though a veteran may only seek service connection for depression, the veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. Therefore, the Board will address whether service connection is warranted for an acquired psychiatric disorder, however diagnosed. The issue has been recharacterized accordingly as noted on the title page. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for acquired psychiatric, right hip, and left hip disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A November 2002 rating decision last denied service connection for a left shoulder disability. 2. Evidence pertaining to the Veteran's left shoulder disability since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least in equipoise as to whether the Veteran's diagnosed left shoulder SLAP tear with paralabral cysts and impingement and degenerative disc disease of the lumbar spine had their onset in service or are otherwise etiologically related to his active service. 4. The Veteran had preexisting left ear hearing loss that was noted at entrance into service. 5. The Veteran was exposed to loud noise (acoustic trauma) while in service. 6. The Veteran's preexisting left ear hearing loss increased in severity during service, and the increase in severity is etiologically related to exposure to acoustic trauma in service. 7. The Veteran's diagnosed sleep apnea had its onset in service or is otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The November 2002 rating decision that last denied service connection for a left shoulder disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The evidence received since the last final November 2002 rating decision is new and material, and the claim for service connection for a left shoulder disability is reopened. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 3. A left shoulder SLAP tear with paralabral cysts and impingement was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. Degenerative disc disease of the lumbar spine was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 5. Resolving all reasonable doubt in the Veteran's favor, the Veteran's preexisting left ear hearing loss was aggravated by service. 38 U.S.C. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.385 (2017). 6. Sleep apnea was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence- Left Shoulder Disability The Veteran most recently filed a request to reopen his claim for entitlement to service connection for a left shoulder disability in August 2014. At the time of the last final denial of the Veteran's claim in November 2002, evidence of record included service treatment records and VA outpatient treatment records. Evidence associated with the claims file since the previous November 2002 denial includes statements from the Veteran, buddy statements from his friends, a VA examination, a positive private opinion and a statement from his VA treating physician. Based on a review of this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for a left shoulder disability is reopened. II. Service Connection 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 service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/ Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Left Shoulder and Back Disabilities In-service treatment records reflect complaints and treatment for the Veteran's left shoulder and back. Specifically, the Veteran sought treatment for his left shoulder in June 1992 complaining that he had noticed a "catch" or pop in his left shoulder for the past 2-3 months. The Veteran was diagnosed with a rotator cuff injury vs. long thoracic nerve compromise. He was provided with physical therapy. With respect to his back, the Veteran sought treatment in December 1990 for a low back strain. Post-service records reflect that the Veteran has been diagnosed with left shoulder and back disabilities. The record includes a July 2015 VA treatment record from the Veteran's treating physician. She noted that the Veteran was experiencing left shoulder pain and that he had reported shoulder pain back in service in 1992. She noted that due to the same location and similar described symptomatology, it is likely that the left shoulder problem he has now is the same problem he had in 1992, although it is not entirely clear whether the current problem was a continuation of the original problem or a separate occurrence. She noted that his left shoulder could be prone to recurrent injury from his previous injury. In a January 2017 opinion, the Veteran's private treating physician noted that the Veteran had a left shoulder SLAP tear with paralabral cysts and impingement. He stated that the advanced atrophy noted of the supraspinatus and infraspinatus muscles indicate that this is a long standing tear and he suspected that all of this happened at the time of his initial injury in 1992 as the mechanism is consistent with that. In an additional October 2017 private medical opinion, a private examiner noted that it was at least as likely as not that whatever left shoulder disorder the Veteran currently has is the same condition documented in his service records. Rationale was provided. Supporting the Veteran's claim for a back disability is a November 2016 statement from his private physician noting that the Veteran had been under his care for degenerative spine disease. He noted that the Veteran's spinal degenerative disease is an accumulation of wear and tear on the body over the course of a patient's life. Although, he stated that to develop spinal stenosis at a young age like the Veteran is unusual. He opined that it is more likely than not that the Veteran's back condition is related to his back injury in service. In a June 2017 letter, the Veteran's chiropractic physician noted that the Veteran had undergone lower back surgery in early 2016 for degenerative disc disease and spinal stenosis. He noted that after reviewing the Veteran's history it was his opinion that his degenerative condition in his lower back was greatly contributed to by injuries he sustained while performing duties in the military. These opinions confirm the Veteran's allegations of continuing complaints associated with his left shoulder and back, originating from his time in service. The record additionally contains various buddy statements from the Veteran's friends attesting to his long-standing back and shoulder problems. The record also includes negative January 2015 and July 2015 VA examinations and medical opinions. The Board has considered in detail the medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (holding that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current left shoulder and back disabilities and service. As all elements of service connection have been satisfied, service connection for these disabilities is granted. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(d) (2017). Left Ear Hearing Loss The auditory threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when 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. It is not necessary to meet these criteria for a hearing loss disability during service to warrant service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The record shows that the Veteran has a current hearing loss disability for VA purposes in his left ear. See January 2015 VA examination. Thus, the element of a current disability has been satisfied. Further, the Board notes that the Veteran has already been service-connected for tinnitus and right ear hearing loss based on in-service noise exposure. The Board finds that the Veteran had preexisting left ear hearing loss that was "noted" at entrance into service. At service entrance, left ear hearing was not within normal limits. Audiometric testing was conducted during the August 1988 service entrance physical examination. The results showed that the Veteran had hearing loss (55dB) at 4000 kHz in the left ear. The 55 dB reading at 4000 Hz, which was "noted" on the service entrance examination, is demonstrative of left ear hearing loss prior to service. See Hensley, 5 Vet. App. at 157 (recognizing treatise evidence that audiometric decibel thresholds 20 decibels or less were within the normal range). In this case, because the Veteran's preexisting left ear hearing loss was "noted" at entrance into service, the presumption of sound condition did not attach at service entrance. See 38 U.S.C. § 1111. As the Veteran's preexisting hearing loss disorder was noted at the time of entry into service, service connection may be granted only if it is shown that the left ear hearing loss worsened beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. On the question of aggravation of a preexisting left ear hearing loss disability during active service, the Board finds that the evidence is at least in equipoise as to whether the Veteran's preexisting left ear hearing loss, which was noted at entrance into service, increased in severity beyond its natural progression during service. At the Veteran's separation examination in April 1993, auditory thresholds in the left ear at 2000 kHz and 3000 kHz had increased. The Veteran underwent a VA examination and opinion in January 2015. The audiologist opined that the Veteran's left ear hearing loss was not at least as likely as not caused by or a result of service. Although the VA examiner determined that the Veteran's left ear hearing loss preexisted service and was not aggravated beyond the normal progression, no rationale was provided for this aggravation opinion. As such, little probative value is accorded to this opinion. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a showing of permanent worsening in service to raise the presumption of aggravation in service has been met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. Additionally, the Board finds that there is not clear and unmistakable evidence of record that the increase in severity during service was due to the natural progress of the disease. Therefore, the presumption of aggravation is not overcome, and the criteria for service connection for left ear hearing loss, as aggravated in service, have been met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Obstructive Sleep Apnea In-service treatment records do not note treatment for sleep apnea. Post-service records reflect that the Veteran has been diagnosed with severe obstructive sleep apnea. The record also includes an October 2017 Independent Medical Evaluation. The physician evaluating the Veteran's sleep apnea is a retired colonel who practiced as a military physician. He noted that he had reviewed the Veteran's records, including his service records. He noted that the Veteran's intake and discharge examinations both document chronic allergic rhinitis and his records also noted at least one episode of reactive airway disease treated with prednisone. He noted that the Veteran's primary risk factors for obstructive sleep apnea included weight gain and chronic allergic rhinitis among other factors. He noted that the Veteran's weight gain issues began while he was in service and he was placed in a weight control program during his last year of active duty. He stated that "although it is obvious that most of his weight gain was post-separation it appears that several factors . . . which are or should be service-connected contributed to his weight gain." He stated that it was as likely as not that the Veteran's weight gain pattern that began in service continued over the subsequent years and is one of the major causes of his obstructive sleep apnea. He stated that the Veteran's service-connected metatarsalgia certainly limited his ability to exercise effectively and contributed to that weight gain. The Board notes that in the decision above, the Board has also service-connected the Veteran's left shoulder and back disabilities. The October 2017 private examiner additionally noted a buddy statement from C.M. which clearly described his knowledge of the Veteran's disturbed sleep and increased snoring while they served together. He noted that this provides significant evidence that the Veteran's obstructive sleep apnea was likely present during his active service though not diagnosed until some time later. He stated that snoring is a primary symptom associated with obstructive sleep apnea and that half of all snorers suffer from sleep apnea. He concluded that, based on C.M.'s description, it is as likely as not that the Veteran's obstructive sleep apnea was actually present, though undiagnosed, while the Veteran was on active duty. There are no other opinions of record. As noted by the October 2017 private examiner, the Veteran submitted a statement from his fellow service member C.M., attesting to his sleep problems while he was on active duty. In a letter from C.M. he states that he served on active duty with the Veteran for 2 1/2 years. During service he recalled the Veteran telling him that he had not been sleeping well and that his snoring had increased. Based on this evidence and resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current sleep apnea and his military service. As all elements of service connection have been satisfied, service connection for sleep apnea is granted. See 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(d) (2017). ORDER The claim for service connection for a left shoulder disability is reopened. Service connection for left shoulder SLAP tear with paralabral cysts and impingement is granted. Service connection for degenerative disc disease of the lumbar spine is granted. Service connection for left ear hearing loss is granted. Service connection for obstructive sleep apnea is granted. REMAND Further evidentiary development is required prior to review of the remaining issues on appeal. The Board notes that the Veteran asserts that he was treated for alcohol issues in service. In an August 2017 letter, the Veteran was informed that the RO had determined records from the Point Loma Substance Abuse Rehabilitation Program (SARP) were unavailable for review and all efforts to obtain the needed information had been exhausted. The Veteran asserts that he has suffered from psychological problems since service. He has submitted numerous statements from his friends and fellow service members attesting that he exhibited psychological problems in service. The Veteran continues to suffer from an acquired psychiatric disability. Based on the credible statements submitted by the Veteran and his friends regarding his in-service psychological issues and his current allegations of continuity of symptomatology, the Board finds that a remand for a VA examination and opinion regarding the claim of service connection for an acquired psychiatric disability is necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board additionally notes that the Veteran has claimed that he suffers from right hip, left hip, and left knee disabilities, secondary to his now service-connected back disability. While on remand, etiological opinions should be obtained to determine whether these disorders are related to the Veteran's now service-connected back disability. Accordingly, the case is REMANDED for the following actions: Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 1. Arrange for the Veteran to undergo VA examinations to determine the nature and etiology of any acquired psychiatric disability, right hip, left hip, and left knee disabilities found to be present, and their relationship, if any, to his military service. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examinations, and the examiners must indicate that such review occurred. Psychiatric examination-The VA examiner is asked to address the following questions: (a) The VA examiner should determine whether any of the stressors claimed by the Veteran are related to his fear of hostile military or terrorist activity. Thereafter, the VA examiner should confirm whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor(s). If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). (b) If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disorder, to include any diagnosed during the period on appeal, either began during or was otherwise caused by the Veteran's military service. (c) Whether it is at least as likely as not (a probability of 50 percent or greater) that any acquired psychiatric disability is caused by any service-connected disability. (d) Whether it is at least as likely as not (a probability of 50 percent or greater) that any acquired psychiatric disability is aggravated by any service-connected disability. Orthopedic examination-The VA examiner is asked to address the following questions: (a) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right hip disability (if any) had its onset during the Veteran's active service or is otherwise causally related to his service. (b) Whether it is at least as likely as not (a probability of 50 percent or greater) that any right hip disability is caused by his now service-connected back disability. (c) Whether it is at least as likely as not (a probability of 50 percent or greater) that any right hip disability is aggravated by his now service-connected back disability. (d) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's left hip disability (if any) had its onset during the Veteran's active service or is otherwise causally related to his service. (e) Whether it is at least as likely as not (a probability of 50 percent or greater) that any left hip disability is caused by his now service-connected back disability. (f) Whether it is at least as likely as not (a probability of 50 percent or greater) that any left hip disability is aggravated by his now service-connected back disability. (g) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's left knee disability (if any) had its onset during the Veteran's active service or is otherwise causally related to his service. (h) Whether it is at least as likely as not (a probability of 50 percent or greater) that any left knee disability is caused by his now service-connected back disability. (i) Whether it is at least as likely as not (a probability of 50 percent or greater) that any left knee disability is aggravated by his now service-connected back disability. All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 2. The RO should then readjudicate the claims. If any benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs