Citation Nr: 18144020 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-02 647 DATE: October 23, 2018 ORDER Service connection for obstructive sleep apnea (OSA), as aggravated by service-connected postoperative deviated nasal septum, is granted. Service connection for a gastrointestinal disorder is denied. Service connection for a cardiac disorder is denied. REMANDED Entitlement to service connection for a lower back disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to an initial compensable rating for right ear hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran’s currently diagnosed OSA is aggravated by his service-connected postoperative deviated nasal septum. 2. At no time during the pendency of the claim does the Veteran have a diagnosis of a disability referable to a cardiac disorder and the record does not contain a recent diagnosis of such disability prior to his filing of a claim. 3. At no time during the pendency of the claim does the Veteran have a diagnosis of a disability referable to a gastrointestinal disorder and the record does not contain a recent diagnosis of such disability prior to his filing of a claim. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA, as aggravated by service-connected postoperative deviated nasal septum, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a cardiac disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a gastrointestinal disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to May 1972, and he is appealing a Department of Veterans Affairs (VA) Regional Office (RO)’s denial of the aforementioned service connection and initial rating claims as adjudicated in February 2015 and March 2016 rating decisions. With regard to the issue of entitlement to a TDIU, the Board of Veterans’ Appeals (Board) has determined that such a claim has been implicitly raised by the record and assumed jurisdiction thereof as part and parcel of the initial rating claim on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board acknowledges that the RO has characterized the issue pertaining to entitlement to service connection for left ear hearing loss as an application to reopen a previously denied claim, and the issue pertaining to entitlement to a higher rating for right ear hearing loss as an increased, rather than initial, rating claim. However, as the finality of the February 2015 rating decision (which initially denied the left ear hearing loss service connection claim and granted service connection for right ear hearing loss) was tolled by the Veteran’s submission of the instant claims in January 2016, the Board has phrased the claims on appeal accordingly. 38 C.F.R. § 3.156(b). While additional evidence relevant to the claims on appeal has been submitted by the Veteran since the RO’s most recent adjudicative actions, the Veteran’s attorney specifically waived initial RO review of this evidence, and such a waiver would have nevertheless been implied based on the date the Veteran perfected his appeals. See 38 U.S.C. § 7105(e)(1); 38 C.F.R. § 20.1304(c). Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for OSA, to include as secondary to service-connected postoperative deviated nasal septum. The Veteran is seeking service connection for his currently-diagnosed OSA on the premise that such disorder manifested in service or, in the alternative, is caused by his service-connected nasal disorder, characterized as postoperative deviated nasal septum. In this regard, the record reflects that the Veteran had a deviated nasal septum on entrance to service and underwent corrective nasal surgery during service, but, due to post-operative complications, a post-service October 1972 VA otolaryngological examination determined that this preexisting condition was aggravated during service. The Veteran now reports his belief that his current OSA, which he reports was initially diagnosed after service in 1980 (as reflected in his December 2014 VA examination report) began during service as a result of his post-operative nasal disorder as he experienced difficulty sleeping due to his nasal obstruction. Indeed, the Veteran is competent to report these in-service symptoms, as they are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). However, while the Veteran’s service treatment records reflect his complaints of and treatment for his nasal symptoms and related mouth breathing, they do not reflect any reports of sleep disturbances and, on separation from service, he denied ever having experienced frequent trouble sleeping. Moreover, the private otolaryngological treatment records submitted by the Veteran reflect that he was first diagnosed with OSA in 1997, not 1980. Accordingly, given these inconsistencies of record, the Board finds that the Veteran’s recollection of his in-service symptoms and post-service date of diagnosis may be impaired and thus lacks probative weight. Thus, given the lack of probative evidence of in-service symptoms of OSA, coupled with the first diagnosis of OSA many years after service, the Board finds that the evidence of record fails to establish that the Veteran’s OSA initially manifested during service. As to the Veteran’s other claimed theory of service connection, namely that his OSA, which manifested and was diagnosed after service, was caused by his service-connected nasal disorder, the Veteran, as a lay person with no known or reported medical training, lacks the requisite expertise to establish the etiology of his OSA as such is a complex medical question and extends beyond an immediately observable cause and effect relationship. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). Accordingly, competent medical evidence is required to determine the validity of this theory of service connection. In that regard, several VA medical opinions, rendered in December 2014, June 2015, and December 2015, were obtained to explore the relationship between the Veteran’s OSA and his nasal disorder. However, the factual premise of the December 2014 medical opinion is flawed as the examiner relied upon a determination that the Veteran underwent a second corrective nasal surgery after service to repair the impairment caused by his in-service surgery. In this regard, while a 1972 VA treatment record reflects a suggestion that the Veteran undergo such surgery, there is no indication that such surgery occurred. Moreover, when initially seeking treatment for possible OSA in 1997, the Veteran reported that he had not undergone a second surgery after service, due to his wish to avoid the post-operative hemorrhaging he experienced in service. Accordingly, the Board finds that this December 2014 VA medical opinion lacks probative value. For the same reason, the Board likewise finds that June 2015 VA medical opinion lacks probative value as such examiner indicated that an opinion cannot be rendered without the aforementioned non-existent post-service surgical report she assumed the prior examiner had reviewed. Likewise, the Board concludes that the December 2016 private medical opinion that concluded that the Veteran’s OSA is caused by his nasal disorder lacks probative value as the Board does not find the rationale cited by the practitioner in support of his positive nexus opinion to be compelling. Specifically, the practitioner cited two medical articles in support of his opinion, and summarized one as concluding that respiratory blockages and OSA may be related, and summarizing the other as finding that an improvement in nasal resistance can improve sleep quality. However, as the first article only suggests a potential correlation between respiratory disorders and OSA, it constitutes, at best, equivocal evidence in support of a theory of causation. Further, as the second article only discusses sleep quality, which can be due to many factors, and not OSA specifically, it also fails to support a theory of causation. However, the December 2015 VA medical opinion, which is based on accurate factual premise, concludes that the Veteran’s OSA is not caused by his service-connected nasal disorder. In support of such opinion, the examiner explained that because OSA involves a restricted oral pathway, OSA cannot be caused by a restricted nasal pathway. Specifically, the examiner opined that, while the Veteran’s nasal disorder can cause noisy mouth breathing, his nasal disorder is unlikely to cause oral tongue-palate obstruction, which is the cause of OSA. As this medical opinion is unequivocally stated, consistent with the record, and is supported by a cogent rationale, the Board finds that this medical opinion is probative evidence against the theory that the Veteran’s OSA is caused by his service-connected nasal disorder. Based on the foregoing, the Board determined that the probative medical evidence of record fails to demonstrate that the Veteran’s OSA is proximately due to his service-connected nasal disorder. However, while not specifically asserted by the Veteran, the Board finds that the record sufficiently establishes that his OSA is aggravated by his service-connected nasal disorder. In this regard, while the VA examiner who rendered the December 2015 medical opinion concluded that the Veteran’s OSA was not caused by his service-connected nasal disorder, he concluded that it is at least as likely as not that his OSA is aggravated beyond the natural progression by his service-connected nasal disorder as the nasal obstruction caused by this disability would likely exacerbate his pharyngeal/tongue obstruction, as it would promote mouth breathing. The Board finds this rationale compelling, as it follows that because OSA is an oral/pharyngeal disorder, a nasal obstruction would cause an increase in required mouth breathing, which in turn could exacerbate an oral/pharyngeal disorder. Further, as the opinion is also unequivocally stated and consistent with the record, the Board finds the opinion to be probative evidence supporting a theory of aggravation. The Board further notes that, although the December 2015 medical opinion concludes that the Veteran’s baseline level of OSA severity prior to aggravation could not be determined, the determination of a such a baseline is not a prerequisite to granting service connection based on aggravation, especially in scenarios such as this one in which the aggravating agent (a service-connected nasal disorder) preexisted the claimed disability (OSA). Given the foregoing, the Board concludes that a basis for granting service connection for OSA as aggravated by a service-connected nasal disorder is warranted, and service connection is warranted on this basis. 2. Service connection for a cardiac disorder. 3. Service connection for a gastrointestinal disorder. Upon review of the evidence, the Board finds that, at no time during the pendency of the claim does the Veteran have a diagnosis of a disability referable to a cardiac or gastrointestinal disorder and the record does not contain a recent diagnosis of such disability prior to his filing of a claim. Specifically, the Veteran has neither identified nor submitted any evidence demonstrating the presence of a cardiac or gastrointestinal disability. Furthermore, he has not reported that he has been diagnosed with such disorders. Absent evidence of a current disability, service connection for cardiac and gastrointestinal disorders is not warranted. REASONS FOR REMAND 4. Entitlement to service connection for a lower back disorder. During the VA spinal examination performed in August 2016, the examiner noted diagnoses of lumbosacral strain, lumbar degenerative disc disease, and lumbar degenerative joint disease. However, as the lumbosacral strain diagnosis date was recorded as 1969, it is unclear as to whether the examiner was referring to this diagnosis for historical purposes or whether the Veteran does indeed still have a lumbosacral strain. Accordingly, clarification regarding the presence of this disability is required. If the clarification results in a current diagnosis of lumbosacral strain, an etiological opinion regarding this disability must be obtained, as the medical opinion rendered by the August 2016 VA examiner only addressed the etiology of the Veteran’s degenerative spinal diseases (degenerative disc disease and degenerative joint disease). With regard to the Veteran’s currently-diagnosed lumbar spine degenerative disc disease and degenerative joint disease, the Board finds that the VA etiological opinion is inadequate, as it failed to cite and consider all documented in-service back treatment or explain the clinical significance of the lumbar spine x-ray finding of slight narrowing of 5th lumbar interface. Accordingly, a new etiological opinion regarding these lumbar spine disabilities is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 5. Entitlement to service connection for hypertension. While the Veteran was diagnosed with systolic hypertension during service, the VA medical opinion rendered in conjunction with his January 2016 VA hypertension examination concluded that this diagnosis was erroneous as it was based on a single elevated reading, and the Veteran’s blood pressure readings thereafter were within normal ranges. However, when rendering this opinion, the VA examiner did not consider the Veteran’s elevated systolic blood pressure recorded during his October 1972 VA examination, performed approximately five months after his discharge from service. Accordingly, a new VA medical opinion, considering this relevant medical evidence, is required. See Barr, 21 Vet. App. at 312. 6. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension. While the record fails to reflect a diagnosis of erectile dysfunction, the Board notes that this disability is generally one diagnosed based on reported symptoms and is capable of lay observation. Accordingly, the Board presumes the existence of this disability. Further, as erectile dysfunction is commonly associated with hypertension, the Board finds that adjudication of the Veteran’s service connection claim for erectile dysfunction should be deferred, pending the requested development above. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). 7. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities. In support of his claim for service connection for an acquired psychiatric disorder, the Veteran recently submitted lay statements from his mother and spouse recounting their observation of his development of psychiatric symptoms during or soon after service, as well as a psychiatric examination report and accompanying medical opinion authored in February 2017 by a private psychologist. In this opinion, the psychologist opines that the Veteran’s depressive disorder is related to his in-service experiences and/or secondary to the pain stemming from his service-connected and currently claimed disabilities. However, as this examination report and medical opinion does not expound on the stressful in-service experiences that allegedly led to the Veteran’s psychiatric disorder (he was not involved in combat and did not have any foreign service), nor does it address the Veteran’s denial of having experienced depression, excessive worry, or nervous trouble of any sort during service. Further, many of the disabilities that the psychologist reports contribute to the Veteran’s depressive disorder are not yet service-connected and are being remanded for development. Accordingly, as the Veteran has not yet been afforded a VA psychiatric examination, the Board finds that such an examination is required, as well as a medical opinion considering the Veteran, his mother, and his spouse’s lay reports. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or service-connected disability). 8. Entitlement to service connection for left ear hearing loss. The Veteran is currently diagnosed with left ear hearing loss, as defined for VA purposes, as reflected in his three VA audiological examinations performed during the appeal period, and his in-service exposure to acoustic trauma has been established, as service connection for right ear hearing loss and tinnitus has been awarded. However, service connection for left ear hearing loss has been denied based on the collective opinions of the VA audiological examiners that the lack of a threshold shift in puretone thresholds when comparing the entrance and separation audiograms failed to establish that the Veteran’s current hearing loss is related to his in-service acoustic trauma. However, as these medical opinions failed to consider the Veteran’s competent reports of experiencing a hearing impairment (and tinnitus) during and since service, they are legally inadequate, and a new medical opinion considering this relevant lay evidence is required. See Layno, 6 Vet. App. at 469-71; Dalton v. Nicholson, 21 Vet. App. 23 (2007); Barr, 21 Vet. App. at 312. 9. Entitlement to initial compensable rating for service-connected right ear hearing loss. Given that service-connected bilateral hearing loss acuity is evaluated differently from service-connected unilateral hearing loss, the Board finds that adjudication of the instant initial rating claim should be deferred pending the above requested development for the Veteran’s service connection claim for left ear hearing loss. See 38 U.S.C. § 4.85(f); Tyrues, 23 Vet. App. at 177. 10. Entitlement to a TDIU. In the aforementioned private psychiatric evaluation, the private psychologist opines that the Veteran’s claimed and service-connected disabilities, including his service-connected right ear hearing loss, render him unemployable. Given this assertion, the Board finds that an implicit claim for a TDIU has been raised as part and parcel of the right ear hearing loss increased rating claim on appeal, and has accordingly assumed jurisdiction thereof. Rice, supra. As the Veteran has not yet been provided with notice regarding how to substantiate a TDIU claim or completed a VA Form 21-8940, such should be accomplished on remand. The matters are REMANDED for the following action: 1. Provide the Veteran with notice regarding how to substantiate a claim seeking entitlement to a TDIU, and request that he complete and return a VA Form 21-8940. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed lower back disorder. The record, to include a copy of this Remand, should be provided to the examiner, and all necessary tests should be conducted. Thereafter, the examiner should specifically state whether the Veteran has a lumbosacral strain now or at any time since January 2016. Thereafter, the examiner must opine whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s current lumbar spine degenerative disc disease and degenerative joint disease, and any current lumbosacral strain, is related to service. When rendering this opinion, the examiner is to consider and comment on the clinical significance of the following evidence: • In January 1969, the Veteran was treated for low back pain and diagnosed with a lumbosacral strain; • In March 1970, lumbar spine x-rays showed a slight narrowing of 5th lumbar interface, but was otherwise interpreted to be normal; • In November 1970, the Veteran reported experiencing low back pain for one week and was diagnosed with mechanical low back pain; • In January 1972, the Veteran reported experiencing low back pain since that morning; and • In April 1972, the Veteran affirmed a history of recurrent back pain when completing this separation medical history report. With regard to the Veteran’s diagnosed lumbar spine degenerative disc disease and degenerative joint disease, the examiner is asked to opine whether it at least as likely as not that these forms of arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. A rationale for any opinion offered should be provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current acquired psychiatric disorder. The record, to include a copy of this Remand, should be provided to the examiner, and all necessary tests should be conducted. The examiner must review the lay statements submitted in January and May 2017 by the Veteran’s mother and spouse, respectively, and the February 2017 private psychiatric evaluation and related medical opinion. Thereafter, the examiner should identify all current acquired psychiatric disorders, and opine whether it is at least as likely as not (50 percent or higher probability) that any currently-diagnosed acquired psychiatric disorder, to include the Veteran’s depressive disorder diagnosed in the February 2017 private psychiatric evaluation, had its onset in or is otherwise directly related to service; or is caused or aggravated by his service-connected disabilities, to include pain and functional impairments stemming from such disabilities. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. 4. Forward the record to an appropriate examiner to obtain an addendum opinion regarding whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s hypertension had its onset in service or manifested to a compensable degree within one year of service (diastolic blood pressure of 150 or more and systolic pressure of 100 or more, requiring medication for treatment). When rendering this opinion, the clinician is asked to consider and comment on the Veteran’s in-service diagnosis of systolic hypertension (which was rebutted by a January 2016 VA opinion) and post-service systolic blood pressure reading of 90 during his October 1972 VA examination. A rationale for any opinion offered should be provided. 5. If the above opinion regarding the etiology of the Veteran’s hypertension results in a basis for granting service connection for hypertension, forward the record to an appropriate examiner to obtain an opinion regarding whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s reported erectile dysfunction is caused or aggravated by his hypertension. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. 6. Forward the record to an appropriate examiner to obtain an addendum opinion regarding whether it is at least as likely as not (50 percent or higher disability rating) that Veteran’s left ear hearing loss related to his acknowledged in-service noise exposure. When rendering this opinion, the examiner must specifically consider and comment on the clinical significance of the Veteran’s reports of experiencing a hearing impairment, including (service-connected) tinnitus, during and since service. A rationale for any opinion offered should be provided. 7. If the above opinion regarding the etiology of the Veteran’s left ear hearing loss results in a basis for granting service connection for left ear hearing loss, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his now service-connected bilateral hearing loss. The examiner should provide a full description of the Veteran’s bilateral hearing loss and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel