Citation Nr: 18147456 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-10 823 DATE: November 6, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for bilateral restless leg syndrome is remanded. Entitlement to service connection for left carpal tunnel syndrome, to include as secondary to service connected left elbow epicondylitis is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. FINDINGS OF FACT 1. The weight of the evidence is at least in equipoise as to whether the Veteran’s obstructive sleep apnea was first manifested in service. 2. The weight of the evidence does not support a conclusion that the Veteran’s left ear hearing loss began in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1982 to November 2002. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Entitlement to service connection for obstructive sleep apnea The Veteran has a current diagnosis of obstructive sleep apnea. At a VA treatment visit in February 2013, the Veteran reported that his symptoms related to obstructive sleep apnea, including snoring, excess daytime sleepiness, waking up feeling unrested, frequent nocturnal waking with a gasping or choking sensation, had all begun during his active duty service. The Veteran’s VA treating physician offered the opinion that these symptoms during service were evidence that his obstructive sleep apnea had its onset in service. A May 2013 statement by the Veteran’s wife noted that she had first observed symptoms of sleep apnea in her husband in about 1996. Specifically, she observed snoring which was severe enough that she would make him roll over in the night, and noted that he would stop breathing during these events. At the Board hearing in February 2017, she reiterated these statements and noted that she had worked as a corpsman in the Navy and was familiar with symptoms of sleep apnea in patients. A medical opinion was obtained in January 2017, which found that there was no documentation in the service treatment records of any symptoms of sleep apnea during the Veteran’s active duty service. The opinion noted that sleep apnea was not diagnosed until 2009, about seven years after the Veteran’s separation from service. The medical provider offered the opinion that the Veteran’s sleep apnea was due to weight gain after separation from service and was not related to his active duty service. In this case, the basic elements required for service connection for obstructive sleep apnea have been met. There is a current diagnosis of obstructive sleep apnea, there is competent and credible evidence of symptoms manifested in service, and there is a medical opinion linking the current diagnosis to the symptoms in service. The Board has considered the medical opinion obtained in January 2017 and finds that it failed to consider the history of symptoms described by the Veteran in service. For this reason, the Board affords it less evidentiary weight than the opinion of the VA treating provider and finds that service connection for obstructive sleep apnea is warranted. Entitlement to service connection for left ear hearing loss The Veteran seeks service connection for left ear hearing loss, which he contends had its onset in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left ear hearing loss, and the record shows that he had some in-service hazardous noise exposure, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left ear hearing began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the above 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. Additionally, in Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (court) stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Id. at 159. The court explained that, when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability", the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The court cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. VA treatment records show the Veteran’s service treatment records, including periodic audiometric evaluations and his service entrance and service separation examination all showed hearing acuity in the left ear to be within normal limits. In this regard, While the Veteran is competent to report having experienced symptoms of impaired hearing since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of left ear hearing loss. The issue is medically complex, as it requires specific testing to determine the nature and extent of any hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the March 2014 VA examiner offered the opinion that the Veteran’s left ear hearing loss was not at least as likely as not related to an in-service injury, event, or disease, reasoning that there is no medical research supporting a delayed or continued hearing loss after the noise exposure has ended, and therefore the normal hearing acuity at service separation was evidence that the noise exposure in service had not caused hearing loss in the left ear. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For the reasons discussed above, the Board finds that service connection for left ear hearing loss is not warranted. The preponderance of the evidence being against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for bilateral restless leg syndrome The Veteran seeks service connection for bilateral restless leg syndrome, which he asserts began in service with leg pain, particularly at night. He has contended that he was on medication for high blood pressure throughout his military service and that his leg pain may be a side effect of this medication. The Veteran is service-connected for a low back disability with sacroiliitis, as well as for radiculopathy in the left leg, as a result of the back disability. In addition, the Veteran’s medical records related to his obstructive sleep apnea all reference restless leg syndrome or periodic limb movements, indicating a possible relationship between restless leg syndrome and obstructive sleep apnea, for which service connection has been granted herein. The Veteran has not been provided a VA examination or opinion with regard to his claim for restless leg syndrome. One should be provided on remand addressing all of the possible etiologies discussed. Entitlement to service connection for left carpal tunnel syndrome, to include as secondary to service connected left elbow epicondylitis Entitlement to service connection for right carpal tunnel syndrome The Veteran seeks service connection for carpal tunnel syndrome in both the left and right wrists. He has a history of work that involved using his hands and wrists constantly, including during active duty service, such as performing administrative and clerical tasks, which he believes is at least partially responsible for his carpal tunnel syndrome. He also sustained injuries to both hands and arms in service and is service-connected for left arm epicondylitis and left ulnar neuropathy. The injuries to the Veteran’s right hand and wrist included a fracture of the right hand. The Veteran’s service treatment records show a complaint of numbness and tingling in both hands and arms in July 1995. The Veteran believes that his carpal tunnel syndrome may also be related, at least in part, to the injuries to his hands and arms in service. A VA examination was provided in January 2014, which concluded that the Veteran’s carpal tunnel syndrome was not incurred in service because the service treatment records did not show any diagnosis of carpal tunnel syndrome. This examination and opinion is clearly inadequate as it did not account for the reported symptoms in service, did not address the Veteran’s work history involving repetitive motion with his hands and wrists, and did not address the question of secondary service connection as a result of injuries in service, such as the left elbow epicondylitis and ulnar neuropathy. For these reasons, a new VA examination and opinion is necessary on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s restless leg syndrome or periodic limb movements. The examiner must provide an opinion as to whether it is at least as likely as not (probability 50 percent or greater) related to an in-service injury, event, or disease, including medication prescribed for high blood pressure while in service. The examiner should also offer an opinion as to whether the reported leg pain experienced in service was a manifestation of or otherwise related to his restless leg syndrome. The examiner should also offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) (1) proximately due to a service-connected disability, specifically low back disability and/or obstructive sleep apnea, or (2) aggravated beyond its natural progression by either service-connected disability. If aggravation is found, the examiner should identify a baseline level of disability prior to such aggravation. The examiner should offer a rationale or statement of the reasons for all opinions offered. 2. Schedule the Veteran for an examination by an appropriate clinician other than the one who provided the VA examination and opinion of record to determine the nature and etiology of the Veteran’s carpal tunnel syndrome in the left and right arms. The examiner must offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) related to an in-service injury, event, or disease, including the Veteran’s work duties involving repetitive motion of the hands and wrists and the injuries to the right and left hands and arms. The examiner should offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that the Veteran’s complaints of numbness and tingling in his hands and arms in service were indicative of carpal tunnel syndrome. The examiner should also offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) (1) proximately due to a service-connected disability of the right or left hand, arm, or shoulder, or (2) aggravated beyond its natural progression by a service-connected disability of the right or left hand, arm, or shoulder. If aggravation is found, the examiner should identify a baseline level of disability prior to such aggravation. The examiner should offer a rationale or statement of reasons for all opinions offered. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel