Citation Nr: 18142671 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-17 903 DATE: October 17, 2018 ORDER Entitlement to service connection for a right hip strain, including as secondary to service-connected disability is denied. REMANDED Entitlement to a compensable evaluation for bilateral tympanoplasty and right myringoplasty with mixed hearing loss (claimed as hearing loss and ear surgery) is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran’s right hip strain is neither proximately due to nor aggravated beyond its natural progression by his service-connected bilateral knee strains and left ankle strain, and are not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a right hip strain have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to service connection for a right hip strain The Veteran contends that he has a right hip disability attributable to service-connected disability, both by causation and aggravation. He has asserted that the disability is related to the service-connected bilateral knee strains and/or left ankle strain. He also asserts that he has a right hip disability related to the circumstances of his service as a Tank Systems Mechanic, which involved repetitive stooping and maneuvering. The question for the Board is whether the Veteran has a current disability that is related to service or is proximately due to or the result of, or is aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of a right hip strain, the preponderance of the evidence is against finding that this disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). VA examination in October 2013 resulted in assessment of a strain of the right hip, with an onset in 2007. The January 2016 VA examiner opined that the Veteran’s right hip strain was less likely due to or aggravated by any service connected disability, including of the knees and left ankle. The examiner stated that an injury in one extremity rarely causes a major problem in the opposite or uninjured extremity, except when damage to the leg resulted in a “major” displacement of the center of gravity of the body while walking, significantly shortening, of the injured limb and the abnormal gait pattern had been present for a long period of time. The examiner noted that there was no evidence of a gait disturbance anywhere in the record and that the Veteran did not have internal derangement of either knee. In a February 2016 addendum, the same examiner indicated that the right hip strain was not aggravated by any service-connected disability. The examiner reasoned, again, that the Veteran did not have any gait disturbance, internal derangement of the knees or limping. The examiner noted again that the condition did not result in a major displacement of center of gravity. While the Veteran believes that his right hip strain is proximately due to or the result of or aggravated beyond its natural progression by service-connected disability, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s opinions. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s right hip strain is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran is competent to describe the circumstances of his service, which the Board acknowledges included repetitive stooping, bending and similar activity. His reports are credible and entitled to probative weight. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, in a February 2016 addendum, VA examiner opined that the Veteran’s right hip strain was not at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s service as a Tank Systems Mechanic. The rationale was that the Veteran’s service treatment records were negative for any indication of a hip disability. The examiner further noted that records dated from 2002 until 2007 did not show any treatment or complaints of hip problems. The examiner reasoned that there was no indication of continuous symptoms or medical treatment since military discharge, and concluded that the disability was most likely due to a significant interceding event. While the Veteran believes that his right hip strain is related to an in-service injury, event, or disease, including the circumstances of his service as Tank Systems Mechanic, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing]. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s opinion. REASONS FOR REMAND 1. Entitlement to a compensable evaluation for bilateral tympanoplasty and right myringoplasty with mixed hearing loss (claimed as hearing loss and ear surgery) is remanded. A review of the Veteran’s VA medical records shows that there are several outstanding audiograms that are pertinent to the Veteran’s claim. Numerous VA audiology consultation records document that audiograms are available “in the Tools menu of CPRS under ‘Audiogram Display.’” However, the audiograms associated with these consultations are not of record. Accordingly, the matter must be remanded to obtain them. See 38 U.S.C. § 5103A(c) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). 2. Entitlement to service connection for sleep apnea is remanded. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In June 2016, the Veteran was afforded a VA examination to address the etiology of his claimed sleep apnea. The VA examiner rendered a negative opinion, noting that the Veteran’s service records did not show any indications of sleep apnea or a snoring disorder, or any poor job performance related to daytime somnolence. However, the examiner did not apparently consider the Veteran’s lay reports of snoring and somnolence in service, or a December 2012 “buddy” statement noting a history of “snoring and sleep problems” in 1998-1999. Stefl, supra. Thus, the examination report is inadequate. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Obtain the specific clinical findings from VA audiological evaluations, including the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, and whether the Veteran's speech recognition tests were measured using the Maryland CNC test (audiometrics/audiograms) from the tests that occurred on September 14, 2012, March 27, 2015, August 3, 2015, November 20, 2015, and July 7, 2016. See VA treatment records with those dates. [Note: it may be necessary to contact the VA medical facility directly to obtain copies of the test results.] If, after continued efforts to obtain Federal records the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for a VA examination with a physician for the purpose of ascertaining the presence, nature and likely etiology of sleep apnea. The examiner must obtain a complete, pertinent history from the Veteran regarding his neck pain, and review the claims file in conjunction with the examination. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that sleep apnea is attributable to service. It is noted that the record includes the Veteran’s lay reports of snoring and somnolence in service and a December 2012 “buddy” statement noting a history of “snoring and sleep problems” in 1998-1999. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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 it is to find against it. (Continued on the next page)   Note that the lack of documented complaints or treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed sleep apnea. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph R. Keselyak