Citation Nr: 18149804 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 18-26 750 DATE: November 13, 2018 ORDER Entitlement to service connection for a low back disability, to include as secondary to a right ankle disability is denied. Entitlement to service connection for right ankle calcaneal spurs disability is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for left leg disability as secondary to right calcaneal spurs claimed as right ankle is denied. Service connection for right leg disability as secondary to right calcaneal spurs claimed as right ankle is denied. REMANDED Entitlement to service connection for major depressive disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based upon individual unemployability is remanded. FINDINGS OF FACT 1. The Veteran’s right ankle disability was not incurred in or caused by his active duty service. 2. The Veteran does not have a current back disability that was incurred in or aggravated by service or a that is secondary to a service connected disability. 3. The Veteran’s tinnitus was as least as likely as not incurred during his active service. 4. The Veteran’s obstructive sleep apnea was as least as likely as not incurred during his active service. 5. The Veteran does not have a current diagnosis of a left leg disability, and the preponderance of the competent and credible evidence of record is against finding that a left leg disability is etiologically related to service or was caused or aggravated by a service-connected disability. 6. The Veteran does not have a current diagnosis of a right leg disability, and the preponderance of the competent and credible evidence of record is against finding that a right leg disability is etiologically related to service or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (West 2016); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (West 2016); 38 C.F.R. §§ 3.303, 3.310 (2017). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1154, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1101, 1154, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017) 5. A left leg disability was not incurred or aggravated during service and it was not caused or permanently aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. A right leg disability was not incurred or aggravated during service and it was not caused or permanently aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (b), effective October 10, 2006. See 71 Fed. Reg. 52,744 -52,747 (September 7, 2006); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected disability, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). 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) 1. Entitlement to service connection for right ankle calcaneal spurs disability The Veteran claims he is entitled to service connection for a right ankle disability. Specifically, he alleges that his right ankle calcaneal spurs were caused by a right ankle sprain in service. His service treatment records (STR) show that he sprained his right ankle in service in March 1982. He was advised to remain in his quarters for 24 hours and prescribed crutches to use for 5 days. Noteably, the record does not show that he was diagnosed with calcaneal spurs during service. In November 2017 the Veteran was afforded a VA examination for his claimed right ankle disability. The VA examiner diagnosed the Veteran with bilateral calcaneal spurs of the ankles. Following an in-person examination and a review of the Veteran’s claims file, the VA examiner determined that it was less likely than not (less than 50 percent probability) incurred in or caused by the in-service injury, event or illness. The examiner reasoned that there is evidence that in March 1982 the Veteran had a right ankle sprain. After this event, there is no evidence of any right ankle disability continuity or chronicity until 2015 when the Veteran started complaining about bilateral ankle pain. The current disability was diagnosed several years after service. The Board notes that the Veteran attributes his right ankle disability to his in-service right ankle sprain. Under certain circumstances, lay statements may support a claim by showing the occurrence of lay-observable events or the presence of disability, or symptoms of disability that are capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994) (finding lay evidence is competent if provided by a person with knowledge of the facts or circumstances and conveys matters that can be observed and described by a person without specialized knowledge or training); 38 C.F.R. § 3.159 (a)(2) (2017). However, although a lay person can provide an account of matters they actually observed, or are within the realm of their own personal knowledge, a lay witness cannot offer evidence that requires specialized medical knowledge such as causation or etiology of a disease or injury. Layno, 6 Vet. App. 465. Therefore, based upon the November 2017 VA opinion, the preponderance of the evidence weighs against the Veteran’s service-connection claim for a right ankle disability. Consequently, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Ultimately, the Board finds against the Veteran’s entitlement claim for service connection for right ankle calcaneal spurs. 2. Entitlement to service connection for a low back disability, to include as secondary to a right ankle disability The Veteran is seeking service connection for a low back disability, to include a secondary to a right ankle disability. He has not asserted that his claimed low back disability was caused directly by a specific in-service event or injury. The Veteran has submitted a June 2018 letter from a private physician which states that he was treated for his back. A May 2017 VA treatment record also shows complaints of low back pain. However, the Veteran has not alleged that his low back pain has a functional impact. After a thorough review of the evidentiary record, the Board concludes that the Veteran is not entitled to service connection for a low back disability. The record does not show that the Veteran was treated for a back disability during service. Further, service connection on a secondary basis cannot be granted as the Veteran is not service connected for a right ankle disability. Because entitlement to service connection has been denied for the primary disability, any claim of entitlement to service connection on a secondary basis is moot as a matter of law. 38 C.F.R. § 3.310. 3. Entitlement to service connection for tinnitus Tinnitus is readily observable by lay persons, and the Veteran’s assessment of tinnitus is sufficient to establish the diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). The Veteran noted in his May 2018 VA Form 9 that he has suffered from tinnitus continuously since service. He also reported that he was exposed to loud noise in service while in the Artillery, Armor Tank Unit and while on the rifle range. Therefore, the Board concludes that the Veteran has a current disability of tinnitus. The Veteran’s DD-214 supports that he was assigned to the 330 Armor Unit and he was also awarded the Pistol, 45 Caliber, qualification badge. The Veteran is competent to report noise exposure in service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). In light of this evidence, the Board finds that the Veteran’s assertions of in-service noise exposure are credible and consistent with his service. 38 U.S.C. § 1154 (a). Consequently, the most probative evidence of record supports a finding that the Veteran’s tinnitus first manifested during active service and the symptoms have been present since that time. The Board notes that the record has also raised the theory that the Veteran’s tinnitus is secondary to his bilateral hearing loss. However, as the record supports a grant of service connection on a presumptive basis under 38 C.F.R. § 3.307, the Board need not address any other theory of entitlement advanced. The Board acknowledges that the Veteran did not report tinnitus during his December 2017 VA hearing loss and tinnitus examination. However, as noted above, the Board finds the Veteran’s reported history of symptoms during and since service to be credible. Resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s tinnitus was incurred during active service. Consequently, service connection for tinnitus is granted. 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. 4. Entitlement to service connection for obstructive sleep apnea The Veteran claims that he is entitled to service connection for obstructive sleep apnea due to exposure to smoke and fumes in service. In March 2014 the Veteran underwent a private sleep study and was diagnosed with moderate obstructive sleep apnea and sleep related hypoxemia. Furthermore, the Veteran submitted an April 2018 private medical opinion which found that the Veteran’s current obstructive sleep apnea diagnosis was directly related to his exposure to smoke, motor vehicle exhaust and fumes while in service. The examiner opined that it is 50/50 related to the conditions the Veteran faced while in military service. Resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s obstructive sleep apnea was incurred during active service. Consequently, service connection for obstructive sleep apnea is granted. 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. 5. Entitlement to service connection for left leg disability as secondary to right calcaneal spurs claimed as right ankle The Veteran is seeking service connection for left leg disability, to include a secondary to a right ankle disability. He has not asserted that his claimed left leg disability was caused directly by a specific in-service event or injury and the record contains no treatment records for a left leg disability during service. Accordingly, service connection on a direct basis is not warranted as the record does not show that a chronic left leg disability was incurred during active service. In the Veteran’s April 2018 VA Form 9, the Veteran asserted that he has suffered from a left leg disability since 1992, which includes limping caused by his right ankle disability. He also claimed that he has ankylosis of extremely unfavorable inflexion at an angle of 45 degrees or more. In addition, he wrote that his leg, by itself, goes forward, backward and side to side. After a thorough review of the evidentiary record, the Board concludes that the Veteran is not entitled to service connection for a left leg disability. In reaching this conclusion, the Board finds the weight of the credible and competent evidence of record does not support a diagnosis for a left leg disability. As there is no current diagnosis of a left leg disability, the criteria for service connection have not been met. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Furthermore, the Board notes that the Veteran claims to have ankylosis of left leg. Under certain circumstances, lay statements may support a claim by showing the occurrence of lay-observable events or the presence of disability, or symptoms of disability that are capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994) (finding lay evidence is competent if provided by a person with knowledge of the facts or circumstances and conveys matters that can be observed and described by a person without specialized knowledge or training); 38 C.F.R. § 3.159 (a)(2) (2017). However, although a lay person can provide an account of matters they actually observed, or are within the realm of their own personal knowledge, a lay witness cannot offer evidence that requires specialized medical knowledge such as causation or etiology of a disease or injury. Layno, 6 Vet. App. 465. Regardless of the diagnosis for the Veteran’s left leg symptoms, even if the Veteran did have a current left leg disability, service connection on a secondary basis cannot be granted, as the Veteran is not service connected for a right ankle disability. Because entitlement to service connection has been denied for the primary disability, any claim of entitlement to service connection on a secondary basis is moot as a matter of law. 38 C.F.R. § 3.310. 6. Service connection for right leg disability as secondary to right calcaneal spurs claimed as right ankle The Veteran is seeking service connection for right leg disability, to include a secondary to a right ankle disability. He has not asserted that his claimed right leg disability was caused directly by a specific in-service event or injury and the record contains no treatment records for a left leg disability during service. Accordingly, service connection on a direct basis is not warranted as the record does not show that a chronic left leg disability was incurred during active service.. In the Veteran’s April 2018 VA Form 9, the Veteran asserted that he has suffered from a right leg disability since 1992, which includes limping caused by his right ankle disability. He also claimed that he has ankylosis of extremely unfavorable inflexion at an angle of 45 degrees or more. In addition, he wrote that his leg, by itself, goes forward, backward and side to side. After a thorough review of the evidentiary record, the Board concludes that the Veteran is not entitled to service connection for a right leg disability. In reaching this conclusion, the Board finds the weight of the credible and competent evidence of record does not support a diagnosis for a right leg disability. As there is no current diagnosis of a right leg disability, the criteria for service connection have not been met. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching the conclusion that the Veteran does not have a current right leg disability, the Board has carefully reviewed the Veteran’s STRs, post-service medical records, and lay statements. Furthermore, the Board notes that the Veteran claims to have ankylosis of right leg. Under certain circumstances, lay statements may support a claim by showing the occurrence of lay-observable events or the presence of disability, or symptoms of disability that are capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994) (finding lay evidence is competent if provided by a person with knowledge of the facts or circumstances and conveys matters that can be observed and described by a person without specialized knowledge or training); 38 C.F.R. § 3.159 (a)(2) (2017). However, although a lay person can provide an account of matters they actually observed, or are within the realm of their own personal knowledge, a lay witness cannot offer evidence that requires specialized medical knowledge such as causation or etiology of a disease or injury. Layno, 6 Vet. App. 465. Regardless of the diagnosis for the Veteran’s right leg symptoms, even if the Veteran did have a current right leg disability, service connection on a secondary basis cannot be granted, as the Veteran is not service connected for a right ankle disability. Because entitlement to service connection has been denied for the primary disability, any claim of entitlement to service connection on a secondary basis is moot as a matter of law. 38 C.F.R. § 3.310. In reaching the conclusion that the Veteran does not have a current right leg disability, the Board has carefully reviewed the Veteran’s STRs, post-service medical records, and lay statements. REASONS FOR REMAND 1. Entitlement to service connection for major depressive disorder is remanded. Although the Veteran has a current diagnosis of major depressive disorder, he has not been afforded a VA examination for this diagnosis. Furthermore, a January 2015 private treatment record noted that patients with symptoms similar to those experienced by the Veteran caused by his obstructive sleep apnea result in clinical depression. As established above, the Veteran is now service connected for obstructive sleep apnea. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the Board finds that he should be scheduled for a VA examination and opinion to determine whether the Veteran’s major depressive disorder is related to service, to include as secondary to his now service-connected obstructive sleep apnea. 2. Entitlement to service connection for bilateral hearing loss A remand is necessary for the issue of entitlement to service connection for bilateral hearing loss to obtain an adequate VA medical opinion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the present case, the December 2017 VA hearing loss examiner based his negative nexus opinion, in part, on the idea that there were no audiological examinations conducted in service. However, the record shows that the Veteran underwent an audiological examination in December 1978 as part of his enlistment examination. Therefore, the Veteran is entitled to a supplement VA medical opinion to address the evidence of record. 3. Entitlement to a total disability rating based upon individual unemployability is remanded. The Board finds that the claim of entitlement to TDIU is inextricably intertwined with the claims for service connection which are being remanded. All issues “inextricably intertwined” with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). The issue of entitlement to TDIU is intertwined with the service connection claim because a decision on the latter claim may have an impact on the former claim. Thus, the claim of entitlement to TDIU must be remanded for the appropriate development, as well as contemporaneous adjudication. Id. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide or identify medical records that are outstanding and relevant to the claims for major depressive disorder and bilateral hearing loss. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently present acquired psychiatric disorder. The examiner should determine the nature, extent of severity, and etiology of any psychiatric disorder(s) which may have been present at any time during the pendency of this appeal. The examiner should provide a diagnosis for any psychiatric disorder that existed during the pendency of this claim. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such psychiatric disorder is related to any incident of the Veteran’s active duty service. The examiner should also offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s acquired psychiatric disorder is proximately due to or permanently aggravated beyond its natural progression by a service-connected disability to include his now service-connected obstructive sleep apnea. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. A detailed rationale for any opinion expressed should be provided. 3. After the preceding development is completed, obtain a VA medical opinion from a qualified examiner on the etiology of the Veteran’s bilateral hearing loss. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. For the Veteran’s diagnosed bilateral sensorineural hearing loss, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the bilateral hearing loss manifested during active duty service or is otherwise related to an event, injury, or disease incurred during active duty service? In this regard, the examiner should specifically address the December 1978 audiological examination which is associated with the Veteran’s military personnel records. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel