Citation Nr: 18148696 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-14 762 DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for chronic fatigue syndrome (CFS) is granted. REMANDED Entitlement to service connection for migraines is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for low back disability is remanded. Entitlement to an initial disability rating higher than 10 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s hearing was not measured at levels considered a disability for VA benefits purposes until many years after his service; his current bilateral hearing loss is not attributable to his noise exposure in service. 2. The Veteran’s CFS is attributable to his Persian Gulf War service. CONCLUSIONS OF LAW 1. The Veteran’s bilateral hearing loss was not incurred or aggravated in service and is not presumed to be service connected. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for the Veteran’s CFS have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1985 to January 1992. He had service in Southwest Asia, specifically in Iraq and Saudi Arabia. 1. Service connection for bilateral hearing loss The Veteran contends that noise exposure in service caused bilateral hearing loss that began in service and continued through the present. In a September 2016 rating decision, a VA Regional Office (RO) granted service connection for tinnitus. Thus, in-service noise exposure has been conceded. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including nervous system diseases such as sensorineural hearing loss, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). For United States Department of Veterans Affairs (VA) disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not preclude service connection for current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet the regulatory requirements for establishing a “disability” at the time of a veteran’s separation, 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. In addition, the Court cited a 1988 medical treatise that stated that the threshold for normal hearing was from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. The Veteran had a service enlistment examination in April 1985. On audiological testing, the auditory thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 5 LEFT 0 0 0 0 0 Speech recognition was not tested then or at other audiological testing during service. In treatment in November 1985, the Veteran reported a one-week history of ear discomfort, headache, and decreased hearing. A clinician observed bulging of his tympanic membranes and congestion of the left side of his nose. The clinician’s assessment was possible early otitis media. Treatment included antibiotic medication. The Veteran’s service treatment records do not reflect any later reports of difficulty hearing. On audiological testing in October 1991, the thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 20 20 LEFT 20 15 10 15 10 In the Veteran’s service separation examination in November 1991, on testing the thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 10 10 LEFT 0 0 0 0 10 The Veteran has not indicated that his hearing was tested during the year following his separation from service. The earliest post-service medical records in the claims file are from more than ten years after his service. In private medical treatment in March 2010, December 2012, and October 2013, the Veteran denied hearing loss. In January 2013 a physician found that the Veteran’s hearing was within normal limits on whispered voice testing. In VA treatment in January 2015, it was noted that the Veteran’s hearing was within normal limits. In a June 17, 2016 audiology assessment, the Veteran reported gradually increasing hearing loss since 1989. He stated that he had noise exposure in service as a missile crew member and in an armor unit. He denied having significant occupational noise exposure after service. Audiometric testing revealed mild to severe sensorineural hearing loss from 3000 to 8000 Hertz in the right ear, and from 1000 to 8000 Hertz in the left ear. Fitting for hearing aids was planned. On June 28, 2016, the Veteran filed a service connection claim for hearing loss. On VA examination in August 2016, the Veteran reported that his present hearing loss necessitated asking people to repeat themselves. On audiological testing the thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 25 45 45 LEFT 20 30 30 40 50 Speech recognition scores were 96 percent in the right ear and 100 percent in the left ear. The examiner found bilateral sensorineural hearing loss. The examiner reviewed the claims file. The examiner expressed the opinion that it is less likely than not that the Veteran’s hearing loss was caused by events in service. In explanation, the examiner noted that his hearing was within normal limits on testing at separation from service. In May 2017 the Veteran had a hearing at an RO, before a Decision Review Officer (DRO). He reported that he was exposed to weapons noise during service. He stated that he was on a missile crew. He indicated that he trained other servicemembers, and was at a weapons range very frequently when accompanying his trainees. He stated that sometimes the available hearing protection was earplugs, which were inadequate and less effective than the usual and appropriate protection. He reported that trainees accidentally fired weapons near his head. While he was in Southwest Asia, he related, there were many weapons misfires at night, while he was not wearing hearing protection. He stated that after noise exposure incidents in service he experienced trouble hearing. He related that over the course of his service developed increasing difficulty hearing speech. He reported that his hearing difficulty continued and worsened further after service and through the present. As there is no documentation of the Veteran’s hearing levels during the year following his separation from service, there is no basis to presume service connection for his hearing loss. The August 2016 VA examiner opined that the Veteran’s hearing loss is not due to noise exposure during service; however, as this opinion appears to have been based solely on the findings of normal hearing at separation, it is inadequate and of reduced probative value. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board finds that the Veteran’s reports of a continuity of symptoms of hearing loss since service are not credible in light of the contents of the service and post-service treatment records. When the Veteran had ear discomfort in service in 1985, he reported decreased hearing. On all testing performed before and during his service, however, his hearing levels were within normal limits bilaterally. The levels fluctuated over time, and were slightly higher at separation than before entrance. However, the levels never showed impairment that is considered a disability for VA benefits purposes. After service, he provided differing histories regarding hearing difficulty. From 2010 to 2015 he denied difficulty hearing. The Veteran filed his claim for service connection for hearing loss in June 2016. From 2016 forward, he has stated that beginning in service he noticed difficulty hearing. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may also weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the record documents multiple instances where the Veteran’s reported history regarding the onset of his hearing loss was directly contradicted by the contents of the service records, post-service records, and statements and actions described above. Thus, the Board finds that the Veteran’s reported history is not credible and is of no probative value. The Board has also considered the Veteran’s statements connecting his current hearing loss to service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Therefore, his statements linking his current hearing to service do not support the claim. In sum, although the first two elements of service connection are present in this case, the evidence weighs against a nexus between the current disability and service. A chronic hearing loss disability is not demonstrated during service and there is no objective evidence of hearing loss until nearly 25 years after military service when the Veteran first sought treatment immediately prior to filing his claim for compensation. The record contains a competent medical opinion addressing the etiology of the condition, but the opinion is not of sufficient probative value. The Board has considered the Veteran’s reported continuity of symptomatology and statements regarding the history of his hearing loss, but concludes that these statements are not credible. In light of the above, the Board finds that the weight of the competent evidence is against a nexus between the current hearing loss and the Veteran’s in-service injury. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 2. Service connection for CFS The Veteran contends that he has CFS that is attributable to his Gulf War service. Service connection is warranted for a Persian Gulf veteran who has a qualifying chronic disability that became manifest during service or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A “qualifying chronic disability” includes: (A) an undiagnosed illness, or (B) a medically unexplained chronic multisymptom illness, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disease). 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). The term “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving skin, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders. 38 C.F.R. § 3.317(b). Disabilities that have existed for six months or more, and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period, will be considered chronic. 38 C.F.R. § 3.317(a)(4). A qualifying chronic disability shall be considered service connected. 38 C.F.R. § 3.317(a)(6). Compensation shall not be paid for a qualifying chronic disability if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between a veteran’s most recent Southwest Asia duty and the onset of the disability. 38 C.F.R. § 3.317(a)(7)(ii). The Veteran had treatment during service for multiple symptoms and disorders. Treatment records do not reflect any report of fatigue specifically. During service he was not diagnosed with CFS. The Veteran’s claims file does not contain records of medical treatment during the years soon after his service. Treatment records from 2012 forward reflect his reports of fatigue. In January 2015 he submitted a claim for service connection for CFS and other disorders, claimed as attributable to his Gulf War service On VA examination in July 2015, the Veteran stated that he had CFS. He reported that since separation from service he always had fatigue. He stated that in 1992 he experienced sudden onset of constant tiredness and exhaustion. He related that in 2013 he sought treatment for chronic fatigue. He indicated that presently he had a CPAP for sleep apnea. He stated that his sleep was interrupted by nightmares that were attributable to his PTSD. He reported that clinicians had prescribed vitamins and testosterone to address his fatigue. He stated that presently he was tired on arising in the morning, he always felt exhausted, he had zero energy, and he always felt on the verge of falling asleep. He stated that he had to stop and rest after even modest exertion. The examiner reviewed the claims file. The examiner expressed the opinion that there was insufficient evidence to warrant a diagnosis of CFS. She opined that his symptoms did not meet the criteria for a diagnosis of CFS. She noted that he had other conditions that can lead to fatigue. In June 2016, private psychologist E. M. T., Ph.D., interviewed and evaluated the Veteran. Dr. T. found that the Veteran had symptoms that met the criteria for a diagnosis of PTSD. She also indicated that he had chronic fatigue. In April 2017, a VA physician completed a CFS questionnaire regarding the Veteran. The physician found that the Veteran has CFS that was diagnosed in 1995. The physician stated that the Veteran had acute onset. He noted that its manifestations included fatigue lasting 24 hours or longer after exercise. He reported that the Veteran had an extensive workup in 1995 to evaluate profound fatigue and six other related symptoms. He stated that the Veteran’s CFS had existed for at least six months. In the May 2017 VA DRO hearing, the Veteran stated that he sought treatment for fatigue because he was exhausted after even minimal activity. He reported that a physician diagnosed him with CFS. He stated that physicians provided treatment for his fatigue, but the treatment did not help. The Board finds that service connection for CFS is warranted. A 2015 VA examiner opined that the Veteran’s symptoms did not meet the criteria for a diagnosis of PTSD, but provided little if any explanation of that opinion. The VA treating physician who found that the Veteran has CFS specified the symptoms, duration, and other factors warranting the diagnosis. The private psychologist Dr. T. also supported a diagnosis of chronic fatigue. The evidence supporting a diagnosis of CFS is at least as persuasive as the evidence against such a diagnosis. The Board accepts that the Veteran has the diagnosis. The Veteran’s CFS is a qualifying chronic disability. It has existed for at least six months, and it became manifest before the end of 2021. The Board therefore grants service connection for his CFS. REASONS FOR REMAND 1. Service connection for migraines The Board is remanding this issue for additional information. The Veteran contends that his migraines are attributable to service. The chronic diseases, listed at 38 C.F.R. § 3.309, for which service connection is presumed if the disease is manifested within one year after service, include organic diseases of the nervous system. During the Veteran’s service, he sought treatment in November 1985, reporting a one-week history of ear discomfort and headache. The claims file does not contain medical records from soon after his service. In March 2013 he submitted a claim for service connection for several disorders, including migraines. In a July 2015 VA examination, the Veteran stated that he began to have headaches in January 1992, right after he left service. He reported that his physician prescribed numerous medications for the migraines, but none helped. He related that presently he had migraines at least twice a week. The examiner noted a 2012 diagnosis of migraine including migraine variants. The examiner expressed the opinion that the Veteran’s migraines are not an undiagnosed disorder. She noted that migraines are a vascular disorder, and are very common. In April 2017, a VA clinician opined that it is less likely than not that the Veteran’s migraines are secondary to his PTSD. The headache history the Veteran has provided suggests onset headaches in or soon after service, possibly within a year after separation from service. The claims file does not contain medical findings or opinions as to how likely it is that the Veteran’s migraines are directly related to disease, injury, or other events in service. The assembled information leaves questions as to whether his migraines soon after service are related to events in service. There is insufficient information from or about any migraines or other headaches during the years immediately following the Veteran’s service. The Board is remanding the claim to allow the Veteran to submit medical records from soon after his service that reflect headaches. He may also identify such treatment and ask VA to seek the records. The Board is also remanding the issue for a new VA examination, with review of the expanded file, and opinion as to the likely etiology of his migraines. 2. Service connection for sleep apnea The Board is remanding this claim for additional information. The Veteran contends that his sleep apnea began during service. He also contends that his sleep apnea is attributable to his Persian Gulf War service. During the Veteran’s service, he was seen on more than one occasion for upper respiratory infections. His service treatment records do not reflect any reports of snoring or sleep problems, nor any findings of sleep apnea. The Veteran’s claims file does not contain medical records reflecting sleep or respiratory problems soon after his service. Later private treatment records reflect complaints of respiratory problems from 2011 forward and insomnia from 2012 forward. In March 2013 the Veteran submitted a claim for service connection for multiple disorders, including sleep apnea. In VA treatment in 2014, he was tested for and diagnosed with obstructive sleep apnea (OSA). On VA examination in June 2015, the examiner expressed the opinion that the Veteran’s OSA is not associated with an undiagnosed illness. In April 2017, a VA clinician opined that it is less likely than not that the Veteran’s OSA is secondary to his PTSD. The claims file does not contain medical findings or opinions as to how likely it is that his OSA began in service or is directly related to disease or injury in service. The Veteran states that OSA began in service, but service records do not reflect OSA symptoms, and the record does not contain evidence from soon after service. The Board is remanding the claim to allow the Veteran to submit evidence supporting OSA during service and continuing after, including medical evidence from soon after service, and accounts, from him and persons who knew him, of his symptoms in and soon after service. 3. Service connection for low back disability The Board is remanding this claim for additional information. The Veteran contends that low back injuries during service produced chronic or recurrent low back pain that continued after service and through the present. Arthritis is among the chronic diseases for which service connection may be presumed if it is manifested to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran’s service medical records show treatment for back injuries and back pain on more than ten occasions between 1985 and 1991. Incidents included a heavy object falling on him, a twisting injury, heavy lifting, and falling from a roof. After falling from a roof in May 1991, he reported ongoing back pain for many weeks. He also was treated for back pain after heavy lifting in November 1991, about two months before separation from service. The Veteran has not identified treatment for low back problems soon after his service. The post-service medical records in the file, which are dated from about 2011 forward, show lumbosacral degenerative joint disease and degenerative disc disease. In a November 2013 VA examination, the examiner opined that the Veteran’s lumbar strain in service resolved in service, and that post-service lumbar arthritis was not related to service. Later, in 2015 and 2017, VA examiners opined that it is less likely than not that the Veteran’s lumbar arthritis is an undiagnosed illness, such as may be associated with Gulf War service. The Veteran reported low back pain in numerous treatment visits in service, including shortly before separation from service. He states that low back problems continued and recurred from service forward. The Board is remanding the claim to give him an opportunity to provide more evidence from or about the time soon after service. Considering the history during service and his claim of continuity after service, the report of the 2013 examination did not adequately address the question of continuity. On remand, the continuity question should be addressed in a new examination and opinion, with consideration of any evidence the Veteran adds. 4. Disability rating for PTSD The Board is remanding this claim for additional information. The Veteran appealed the initial 10 percent disability rating that an RO assigned for his PTSD. He contends that his PTSD produces impairment that warrants a higher rating. The record contains rather varied accounts of the extent of the Veteran’s impairment due to PTSD. In a June 2015 VA examination, the examiner indicated that the Veteran’s PTSD produced occupational and social impairment with occasional decrease in work efficiency. In June 2016, a private psychologist who evaluated the Veteran found that his PTSD produced serious occupational and social impairment and made him unemployable. In a May 2017 VA DRO hearing, the Veteran stated that his PTSD caused problems concentrating and getting along with people. He reported that those problems had interfered with his work when he was employed. He also noted that he had been hospitalized for suicidal thoughts. The Board is remanding the rating issue for a new examination, with careful review of the record, to assist in clarification of the extent of his impairment. Before that examination, the file should be updated with any records of his VA mental health treatment more recent than those in the file. The matters are REMANDED for the following action: 1. Invite the Veteran to submit information that reflects manifestation during or soon after service of migraines or other headaches, of sleep apnea or related symptoms (snoring, sleep disturbance, nighttime gaps in breathing), and of low back problems. Tell him that relevant evidence can include medical records, particularly from soon after service, and statements from him and/or persons who knew him then. Inform him that, with respect to medical records, he may identify the sources and approximate years of treatment and ask VA to seek the records. 2. Obtain records of all VA outpatient and inpatient treatment, particularly mental health treatment, of the Veteran from January 2017 forward. 3. Schedule the Veteran for VA examinations to address the likely etiology of his migraines, obstructive sleep apnea (OSA), and low back disorders. Provide the expanded claims file to the examiner for review. Ask the examiner to review the claims file and examine the Veteran. Ask the examiner, with respect to each disorder (the migraines, the OSA, and each current low back disorder) to provide opinions as to whether it is at least as likely as not that the disorder: (a) began in service, and/or (b) is related to disease, injury, or other events in service. Ask the examiner to explain the opinions and conclusions. 4. Schedule the Veteran for a VA examination to clarify the effects of, and the extent of impairment from, his posttraumatic stress disorder (PTSD). Provide the expanded claims file to the examiner for review. Ask the examiner to provide detailed findings as to the severity, frequency, and persistence of the Veteran’s PTSD symptoms, and the effects of those symptoms on his social functioning and his capacity for occupational functioning. 5. Thereafter, review the expanded claims file and review the remanded claims. If any of those claims is not granted to the Veteran’s satisfaction, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, return the case to the Board for appellate review, if otherwise in order. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. J. Kunz, Counsel