Citation Nr: 18151826 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-31 512 DATE: November 20, 2018 ORDER The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), an anxiety disorder other than PTSD, a depressive disorder, and a psychiatric sleep disorder, is reopened; to that extent only, the appeal is granted. The claim of entitlement to service connection for a lumbar spine disorder is reopened. Entitlement to service connection for a lumbar spine disorder is granted. Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, an anxiety disorder other than PTSD, a depressive disorder, and a psychiatric sleep disorder, is remanded. FINDINGS OF FACT 1. An April 2011 rating decision denied entitlement to service connection for PTSD and an acquired psychiatric condition, to include a sleep disorder, on the basis that the Veteran did not have a current disability. The Veteran was notified of that decision, but did not perfect an appeal of that decision. 2. A February 2015 VA treatment record showing diagnoses of unspecified anxiety disorder and unspecified depressive disorder, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder, to include PTSD, an anxiety disorder other than PTSD, a depressive disorder, and a psychiatric sleep disorder. 3. The April 2011 rating decision denied entitlement to service connection for low back pain/lumbago on the basis that the Veteran did not have a current disability. The Veteran was notified of that decision, but did not perfect an appeal of that decision. 4. A December 2014 private treatment record showing a diagnosis of degeneration of the lumbar disks and an April 2015 VA examination report showing a diagnosis of back strain, when considered by itself or in connection with evidence previously assembled, relate to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a lumbar spine disorder. 5. The evidence is in equipoise as to whether the lumbar spine disorder is related to the in-service low back pain. 6. The weight of evidence shows that the obstructive sleep apnea is related to in-service sleep symptomatology. 7. The weight of the evidence is against a finding that the Veteran currently has or has had a hearing loss for VA disability purposes in either ear since he filed his claim in October 2014. CONCLUSIONS OF LAW 1. The April 2011 rating decision, which denied the Veteran’s claims of entitlement to service connection for PTSD, an acquired psychiatric condition, to include sleep disorder, and low back pain/lumbago, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the April 2011 rating decision is new and material, and the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, an anxiety disorder other than PTSD, a depressive disorder, and a psychiatric sleep disorder, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. The evidence received since the April 2011 rating decision is new and material, and the claim of entitlement to service connection for a lumbar spine disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 5. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2002 to July 2006, to include one year of foreign service. He received the Global War on Terrorism Expeditionary Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 10, 2017, statement, the Veteran’s counsel requested a 90-day extension from the date of that letter to submit additional evidence. In June 2017, the counsel submitted additional evidence and waived any remaining time to submit additional evidence or argument. In any event, that 90-day period has expired. In January 2018, the counsel again waived any remaining time to submit additional evidence or argument and requested a decision from the Board on the issues on appeal. Therefore, the Board can adjudicate the claims without determining whether an extension should be granted to submit additional evidence. In October 2015, the Veteran’s former counsel requested a hearing with a decision review officer. In April 2016, the Veteran withdrew the hearing request. The Veteran’s counsel submitted additional evidence since the January 2017 statement of the case that pertains to the sleep apnea claim. The Veteran’s substance appeal was received after February 2, 2013. Therefore, that evidence shall be subject to initial review by the Board because neither the Veteran nor his counsel requested in writing that the agency of original jurisdiction initially review such evidence. Section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). In fact, the counsel requested a waiver of consideration by the agency of original jurisdiction. The April 2011 rating decision, which denied the Veteran’s claims of entitlement to service connection for PTSD, an acquired psychiatric condition, to include sleep disorder, and low back pain/lumbago. In the January 2015 rating decision, the RO denied the reopening of claims of entitlement to service connection for anxiety, an acquired psychiatric condition to include sleep disorder, and low back pain/lumbago. The RO considered the Veteran’s claim of service connection for obstructive sleep apnea as part of the previously denied claim for a sleep disorder. The April 2011 rating decision reflects that the RO denied a claim of entitlement to service connection for a psychiatric sleep disorder and not a physiological sleep disorder, such as obstructive sleep apnea. Therefore, the Board will review the claim of entitlement to service connection for obstructive sleep apnea on a de novo basis. In light of the decision below, the Veteran is not prejudiced by the Board’s consideration of that claim on a de novo basis. Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records reflect diagnoses of unspecified anxiety disorder and unspecified depressive disorder and an assessment that sleep dysfunction may point to PTSD. Though the RO separately adjudicated new and material claims regarding PTSD and an acquired psychiatric disorder other than PTSD, the Board has determined in the findings of fact and conclusions of law that there is only one service connection claim regarding a psychiatric disorder. As stated above, the Board is reopening and remanding that claim. In a July 2015 rating decision, the RO reopened and denied the claim of entitlement to service connection for a lumbar spine disorder on the merits. The Board must initially determine whether the Veteran has presented new and material evidence sufficient to reopen the previously denied claim. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). The Board has a responsibility to consider whether it was proper for a claim to be reopened; and there is no harm to a veteran’s ability to present the case when the Board addresses the issue of whether a claim should be reopened rather than addressing the reopened claim on the merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As noted in the findings of fact and conclusions of law, the Board is reopening the claim. Service Connection 1. Entitlement to service connection for a lumbar spine disorder As stated above in the findings of fact and conclusions of law, the Board is reopening the claim of entitlement to service connection for a lumbar spine disorder. Based on the decision below, the Veteran is not prejudiced by the Board’s consideration of the claim of entitlement to service connection for a lumbar spine disorder on the merits. Id. Governing law and regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, 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). Analysis A December 2014 private treatment record shows a diagnosis of degeneration of the lumbar disks and an April 2015 VA examination report shows a diagnosis of back strain. Therefore, a current disability is shown. The Veteran’s service treatment records show that in May 2006 he was treated for low back pain following a motor vehicle accident. His July 2006 separation examination report shows that the examiner noted that the Veteran had a complaint of low back pain related to the motor vehicle accident in May 2006. Thus, an in-service injury is shown. There is conflicting medical evidence on whether the current lumbar spine disorder is related to the in-service low back pain. In March 2011, a VA examiner opined that based on the normal clinical examination, it is less likely as not that the mild disc space narrowing of the lumbar spine is related to active service. The examiner noted that the mild disc space narrowing is a non-specific finding and that there are no treatment records indicating that he was treated for that disorder in service or afterwards. The examiner also opined that based on the in-service motor vehicle accident, the current diagnosis of lumbago is at least as likely as not related to service. The examiner noted that there was treatment for lumbago in service and subjective reports of treatment since service. The examiner again noted that the clinical examination was normal. In a December 2014 statement, a private chiropractor noted that he had been treating the Veteran for chronic low back pain since January 2013. The chiropractor noted that the low back pain began shortly after the May 2006 in-service accident. The chiropractor noted the Veteran’s reporting that the nature of his work in service contributed to the back pain getting worse and that he had no back problems prior to the 2006 accident. The chiropractor stated that the Veteran had degeneration of his lumbar disks at age 30. The chiropractor opined that the 2006 in-service accident and nature of his in-service work contributed greatly to his current disability. An April 2015 VA examiner opined that the back strain was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that during service, the back condition was acute. The examiner stated that there was no chronicity of care. The examiner concluded that a nexus had not been established. The private chiropractor essentially related the lumbar spine disorder to the in-service low back pain. The March 2011 VA examiner also related the lumbago to the in-service low back pain. The April 2015 VA examiner noted that the back disorder was acute, but the July 2006 separation examination report notes a complaint of low back pain related to the motor vehicle accident in May 2006. The April 2015 VA examiner noted that there was no chronicity of care, but the private chiropractor stated in December 2014 that he had been treating the Veteran since January 2013 and the March 2011 VA examiner noted the Veteran’s reporting of post-service treatment for lumbago. In light of the above, the evidence is in equipoise as to whether the lumbar spine disorder is related to the in-service low back pain. Accordingly, service connection for a lumbar spine disorder is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. Entitlement to service connection for obstructive sleep apnea VA treatment records and the June 2017 statement from a private doctor show a diagnosis of obstructive sleep apnea. Hence, a current disability is shown. The Veteran’s service treatment records do not show a diagnosis of sleep apnea. Nonetheless, a fellow veteran reported the Veteran having in-service sleep symptomatology. In an April 2017 statement, a fellow veteran reported that in service the Veteran snored loudly every night and suffered from headaches in the morning. The fellow veteran noted that the Veteran had a lot of difficulty staying asleep and that during the day he was tired and typically fell asleep on duty. The fellow veteran added that the Veteran was not able to concentrate well, that he was irritable, and that he was at times a very difficult colleague. The Board finds that this fellow veteran is competent to report this symptomatology, and the Board finds him credible. Therefore, an in-service injury is established. In a June 2017 statement, a private doctor opined that it is as likely as not that the obstructive sleep apnea and associated symptoms began in service. The doctor based his opinion on the medical records from the claims file, an interview of the Veteran, statements of the Veteran’s then spouse and a fellow veteran, and his own medical experience. The doctor noted that at a February 2015 neurological evaluation, the Veteran reported that he may have fallen asleep at the time of his in-service motor vehicle accident. The doctor indicated that the Veteran’s then spouse reported the Veteran having several sleep-related symptoms that could be a product of sleep apnea including screaming and thrashing in his sleep and waking in a panic. The doctor noted the Veteran’s reporting that he was reprimanded in early 2003 for falling asleep on duty and that he regularly fell asleep on the job during service though he was only caught once. As there are no contrary medical opinions of record, the weight of evidence shows that the Veteran’s obstructive sleep apnea is related to in-service sleep symptomatology. Accordingly, service connection for obstructive sleep apnea is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. Service connection for bilateral hearing loss is denied VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran and his counsel have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Governing law and regulations Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Where chronicity of certain diseases is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. §§ 3.303(b), 3.309(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a veteran’s claim. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). For the 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, or 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Analysis As for a current hearing loss disability in either ear, Hickson element (1), the Board has reviewed the VA treatment records and a December 2014 VA examination report. The VA treatment records and the examination report do not show that the Veteran currently has or has had hearing loss disability for VA purposes in either ear since he filed his claim in October 2014. In December 2014, there were no auditory pure tone thresholds greater than 10 decibels in either ear. Speech recognition was 100 percent in both ears. A February 8, 2015, VA treatment record reveals that the Veteran reported that he had decreased hearing if there are background noises. A February 20, 2015, VA treatment record reflects that the Veteran reported an issue with hearing loss. A February 23, 2015, VA treatment record shows that the Veteran reporting having no hearing difficulty over the past 30 days. As to the February 8, 2015, and February 20, 2015, VA treatment records, these records are merely the reporting by the Veteran of his asserted hearing loss. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus, the VA treatment records are not competent evidence of a current hearing loss disability for VA purposes in either ear. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the existence of a hearing loss based on specific pure tone thresholds and speech recognition scores falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (lay persons not competent to diagnose cancer). As for the Veteran’s reporting of a hearing loss if there are background noises, this assertion is not the reporting of a contemporaneous or later diagnosis of hearing loss in either ear based on specific pure tone thresholds and speech recognition scores. To the extent that the Veteran is claiming continuity of hearing difficulty symptomatology based on his assertion in his October 2014 claim that he has suffered from tinnitus since service, the Veteran is competent to report this symptomatology and the Board finds him credible. That said, supporting medical evidence is required because a claim based on continuity of symptomatology can only be granted if there must be competent evidence of a current disorder for which there is continuity of symptomatology. The weight of the evidence is against a finding that the Veteran currently has or has had a hearing loss for VA disability purposes in either ear since he filed his claim in October 2014. In other words, the Veteran, while entirely competent to report difficulty hearings, is not competent to state that such symptoms are manifestations of a hearing loss disability for VA purposes. In short, the Board finds that Hickson element (1), current disability, is not satisfied as to the claim of entitlement to service connection for bilateral hearing loss. In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that the Veteran has or has had a hearing loss for VA disability purposes in either ear during the appellate term. Therefore, the preponderance of the evidence is against the claim, and it is denied. REASONS FOR REMAND A VA examination is necessary to determine whether a current psychiatric disorder is related to service, to include his foreign service in Kuwait and Iraq. The Veteran has not provided notice of the information and evidence needed to substantiate and complete a claim of entitlement to service connection for PTSD, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C. §§ 5103, 5103A (2012). The matter is REMANDED for the following action: 1. The AOJ should provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of entitlement to service connection for PTSD, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. 2. Ask the Veteran to identify all treatment for his psychiatric disorder and obtain any identified records. 3. After the development in 1 and 2 is completed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include anxiety from being separated from his family during service, fear of a deployment, the stress of working in an environment where one could be sent into combat, and serving in security forces in Kuwait and Iraq. If the Veteran is diagnosed with a personality disorder and an acquired psychiatric disorder, the examiner must opine whether it is as at least as likely as not the acquired psychiatric disorder was superimposed on a personality disorder during active service and resulted in additional disability. 4. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefit sought in connection with the claim remains denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC), with a copy to his counsel, and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel