Citation Nr: 1804856 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-00 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for left ankle Achilles tendonitis. 3. Entitlement to service connection for a left hip disability 4. Entitlement to an initial compensable evaluation for a migraine headache disability. 5. Entitlement to an initial compensable evaluation for a bilateral hearing loss disability. 6. Entitlement to an increased evaluation, in excess of 10 percent, for chronic lumbar strain with degenerative changes. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Marine Corps, with active duty service from June 1982 through August 1994. Thereafter, the Veteran had active duty service with the United States Army, from October 2006 through May 2007, and from June 2007 through June 2011. The Veteran has additional periods of service with the Army National Guard. This appeal comes to the Board of Veterans' Appeals ("Board") from rating decisions, dated February 2013 and April 2013, issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in San Diego, California. Jurisdiction of the appeal currently resides with the RO in Seattle, Washington (hereinafter Agency of Original Jurisdiction ("AOJ")). The Veteran testified at a March 2017 Board videoconference hearing, held before the undersigned Veterans Law Judge. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for a left ankle and left hip disability, entitlement to an initial compensable evaluation for the migraine headache disability and the bilateral hearing loss disability, and entitlement to an increased evaluation for a lumbar spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran's current sleep apnea disability began during, or was otherwise caused by, his active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a sleep apnea disability have been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 1132, 5103, 5103(a), 5107 (West 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In regards to the Veteran's claim for entitlement to service connection, the Board notes that the VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain on his behalf, in correspondence dated August 2012 and March 2013. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence relating the claimed disability to active service and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in the December 2009 VCAA notice, as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist since the date of the Board's August 2016 remand. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). General Laws and Regulations Governing Entitlement to Service Connection: In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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, 1167 (Fed. Cir. 2004). Service connection may also 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). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Alternatively, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That being the relevant, generalized, law applicable to the Veteran's claim, the Board finds that the evidence of record warrants a finding of entitlement to service connection for an obstructive sleep apnea disability. Following a review of the competent and credible evidence of record, which includes both medical and lay evidence, the Board finds the Veteran experienced an onset of symptoms during a period of active duty service, which remained chronic and continuous until his diagnosis for sleep apnea in December 2005. See Savage, 10 Vet. App. at 494-97. A review of his current medical treatment records indicates that the Veteran has a current diagnosis for an obstructive sleep apnea disability. See e.g. Portland VAMC Records, including sleep study dated December 2005. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. 38 U.S.C. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As to the second element, the existence of an in-service disease, the Board finds that the service medical records do not contain any reports or diagnoses for an obstructive sleep apnea disability. However, the Board observes that the Veteran has credibly reported an onset of symptoms during a period of active duty service. For example, during his March 2017 hearing before the Board, the Veteran testified that he experienced symptoms of sleep apnea, including loud snoring and day time fatigue beginning in November 2004, during a period of active duty service. See DD 214, showing Veteran called to active duty service in Kuwait and Iraq. In addition to the Veteran's lay reports, the record contain a lay description of the Veteran's symptoms from M.G., who served with the Veteran from November 2003 to August 2004. See Correspondence dated April 2017. In his letter, M.G. reports that he shared a tent with the Veteran while they were deployed, and remembers the Veteran would snore loudly during his sleep and would at times appear to stop breathing. Similarly, the Veteran's wife has submitted a statement describing an onset of sleep apnea symptoms in 2004. See Correspondence dated March 2017. Based upon this lay evidence, the Board finds there is sufficient evidence to establish an onset of sleep apnea symptoms during the Veteran's active duty service. The Board finds that these lay reports of record are credible and establish an onset of symptoms beginning in 2004. Thus, the primary question before the Board is whether a nexus exists between this in-service occurrence of sleep apnea symptoms and the Veteran's December 2005 diagnosis for an obstructive sleep apnea disability. As noted briefly above, service connection may be established for certain chronic diseases. 38 U.S.C. §§ 1101, 1112, 1133, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Additionally, diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a), may still qualify for service connection under the three-element test for disability compensation listed in § 3.303(a). In this regard, a chronic disease is defined as a disease "persisting over a long period of time." See Dorland's Illustrated Med. Dictionary 359 (32d ed. 2012). In terms of the Veteran's claim, the Board acknowledges that obstructive sleep apnea is not a disability listed as "chronic" by 38 C.F.R. § 3.309. However, the board finds that the Veteran's symptoms of obstructive sleep apnea have been chronic and continuous since their initial onset during a period of active duty service. Specifically, the Veteran has testified that the onset of his symptoms began in November 2004, during a period of active duty service. The Veteran has similarly made statements to his treating physicians that he experienced an onset of symptoms in 2004. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition). Moreover, the Board finds that the date of the Veteran's diagnosis indicates that his symptoms were chronic and continuous following his separation from active duty service. Notably, the Veteran was diagnosed with obstructive sleep apnea in December 2005, less than a year following his discharge from active duty service. At the time of his diagnosis, the examining clinician noted that the Veteran had a history of loud snoring, day time fatigue, and observed apneas. Given the proximity of this diagnosis to the Veteran's separation from active duty, and the medical evidence documenting a history of symptoms, the Board finds it reasonable to conclude that the Veteran's sleep apnea symptoms were both chronic and continuous until the time of his diagnosis. Overall, the Board finds that the Veteran's statements regarding an onset of symptoms during a period of active duty service and continuous symptoms thereafter to be credible. Credible lay evidence of record documents that the Veteran experienced an onset of symptoms during a period of active duty service. Following his separation, the Veteran experienced continuous symptoms, and was diagnosed with a sleep apnea disability in December 2005. In conclusion, and after consideration of the above evidence, the Board finds that the criteria for service connection for a sleep apnea disability have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an obstructive sleep apnea disability is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND While the Board regrets further delay, the Veteran's claim must be remanded as additional development is required. First, the Board finds that a remand is required to obtain outstanding records of VA treatment. During his March 2017 hearing, the Veteran testified that he continues to receive treatment at VA medical facilities. However, the Veteran's electronic claims file contains records of VA treatment dated through October2012, with no more recent records available. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C. §5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). As the Veteran has identified relevant outstanding medical records, the Board finds that a remand is required to obtain such evidence before the Board may make a determination as to the remaining issues on appeal. Second, the Board finds that a remand is required in order to afford the Veteran an updated VA examination to assess the current severity of his bilateral hearing loss disability and his lumbar spine disability. During the March 2017 hearing, the Veteran testified that his bilateral hearing loss disability had worsened since the date of his last examination, in December 2011. Similarly, in statements to the Board, the Veteran has requested a more contemporaneous examination to assess the severity of his lumbar spine disability, which has worsened since the date of his last examination, in December 2011. See e.g. May 2014 Statement from Representative. When a Veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d); 38C.F.R. § 3.159(c)(4); See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Therefore, on remand, the Veteran should be provided with an updated VA orthopedic examination for his lumbar spine and audiological evaluation. As to the severity of the Veteran's migraine headache disability, the Board observes that the Veteran has reported an increased frequency of his symptoms. See e.g. December 2013 Form 9. However, the Board is unclear as to whether this increase in frequency of headaches amounts to a prostrating attack, which is necessary prior to the assignment of a compensable evaluation. Thus, in order to resolve the ambiguity, the Board finds that the Veteran should be scheduled for a VA examination on remand to assess the current severity of his headache disability. The Board additionally finds that a remand is required in order to provide the Veteran with a VA examination for his left ankle and left hip disability. The Veteran was previously afforded a VA examination for these disabilities in December 2011; however, the Board finds that the opinion rendered is inadequate for ratings purposes. Specifically, the Board finds that the responsive medical opinion does not account for the Veteran's lay reports of an in-service injury and does not properly discuss the Veteran's lay reports of symptoms since his separation from military service. The Board is also uncertain as to whether the examiner was able to access the Veteran's medical records and whether a review of these records was completed. Therefore, on remand, the Veteran should be provided with an updated VA orthopedic examination to assess the etiology of his left ankle and left hip disabilities. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain any outstanding medical records from VA treatment facilities identified by the veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). 2. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a new VA orthopedic examination to determine the severity of his lumbar spine disability. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. 3. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a new VA orthopedic examination to determine the etiology of the left hip and left ankle disabilities. The electronic claims file must be provided to and reviewed by the examiner in conjunction with the examination. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: (i) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's left ankle disability began during, or is otherwise related to the Veteran's active duty service? (ii) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's left ankle disability was caused by or aggravated by any of the Veteran's service connected disabilities? (iii) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's left hip disability began during, or is otherwise related to the Veteran's active duty service? (iv) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's left hip disability was caused by or aggravated by any of the Veteran's service connected disabilities? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as a chronic and permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a new VA audiological examination to assess the current severity of his bilateral hearing loss disability. 5. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a new VA examination to assess the severity of his migraine headache disability. 6. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (West 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs