Citation Nr: 18153338 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-37 299 DATE: November 27, 2018 ORDER Entitlement to service connection for a disability manifested by back pain, to include as due to undiagnosed illness, is granted. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for vision disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for latent tuberculosis is remanded. Entitlement to sleep apnea, also claimed as sleep disturbances, is remanded. Entitlement to service connection for a disability manifested by chest pain is remanded. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran has had recurrent signs or symptoms of pain in his back that have not been attributed to a known clinical diagnosis. 3. The Veteran’s hearing impairment is no worse than level I in the right ear and no worse than level I in the left ear. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for a qualifying chronic disability characterized by back pain are met. 38 U.S.C. §§ 1101, 1110, 1117, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2018). 2. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2002 to July 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Duties to Notify and Assist The record shows that VA has fulfilled its obligation to assist the Veteran in developing the claims decided herein, including with respect to VA examination of the Veteran in connection to the service-connected bilateral hearing loss. The Veteran has not identified any deficiency in VA’s notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Regarding the issue of entitlement to service connection for back disability, in view of the grant herein, discussion of how VA met those duties is not required. Similarly, regarding the remaining issues of entitlement to service connection for vision disability, right knee disability, left knee disability, tuberculosis, sleep impairment, and chest pain, in view of the remand herein, discussion of how VA met those duties is not required. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if “the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.” Savage v. Gober, 10 Vet. App. 488, 498 (1997). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multisymptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). See 38 C.F.R. § 3.317. A claimant’s signs or symptoms need not be shown by medical evidence; however, some objective indications of disability are required. 38 C.F.R. § 3.317(a). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Because the Veteran served in the Southwest Asia Theater of operations from 2005 to 2006, he is a Persian Gulf veteran within the meaning of the applicable statute and regulation. See Military Personnel Records. It must now be determined whether the Veteran’s back pain is associated with an undiagnosed illness, medically unexplained chronic multisymptom illness, other qualifying chronic disability that became manifest either during the Veteran’s Persian Gulf War service or to a degree of 10 percent or more after separation from service. Entitlement to service connection for a disability manifested by back pain, to include as due to undiagnosed illness A review of the service treatment records (STRs) shows that the Veteran reported back pain during the April 2005 post-deployment health assessment. A November 2005 STR also noted the Veteran’s complaints of back pain. The Veteran was provided a VA Gulf War general medical examination in May 2015. The examiner opined that it was less likely than not that the Veteran had a disability pattern of back strain that is related to a specific exposure event experienced during service in southwest Asia. The only rationale the examiner provided was that evaluation did not reveal a diagnosis relating to the back. The Veteran was provided another VA examination in June 2015. After examination, the examiner opined that although there was back strain reported and documented in medical records and treated with conservative therapy, there was no confirmed back condition during the June 2015 examination. The examiner provided conflicting opinions by checking both options: that the claimed condition was “at least as likely as not” as well as “less likely than not” incurred in or caused by the claimed in-service injury, event, or illness. The examiner did not specify the condition for these conflicting opinions. The Veteran has contended ongoing intermittent back pain since active service. Based on the evidence above, the Board finds that service connection for back pain, as due to an undiagnosed illness, is warranted. First, the Veteran has consistently indicated that he has current back pain and back pain is specifically listed as a sign or symptom of undiagnosed illness. 38 C.F.R. § 3.317(b)(5). In addition, the Veteran has indicated that such back pain has persisted since service, and therefore, has persisted more than six months. Moreover, the evidence shows that the Veteran’s back pain has not been attributed to a known clinical diagnosis. Furthermore, in Joyner v. McDonald, 766 F.3d. 1393 (2014), the Federal Circuit found the Court “erred in concluding that pain cannot evidence a qualifying chronic disability under § 1117.” Additionally, these complaints are to at least a compensable degree for the back disability. In this regard, the Board notes that the Court has held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board acknowledges the conflicting VA opinions of record. However, the Board finds the May 2015 Gulf War examiner’s opinion is inadequate because it is conclusory, and did not explain how the examiner determined that the Veteran’s symptoms are not an undiagnosed illness or a medically unexplained chronic multisymptom illness. Additionally, the June 2015 VA examiner provided conflicting opinions as to the etiology of the back pain, did not adequately address the Veteran’s in-service complaints of back pain, and did not adequately discuss possible causes for the back pain noted. Thus, the Board affords these VA opinions no probative weight. Thus, while the Board could remand the claim for yet another attempt to schedule a VA examination, the above evidence is sufficient to decide the claim. A remand could therefore be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Accordingly, resolving reasonable doubt in favor of the Veteran, entitlement to service connection for back pain as due to an undiagnosed illness is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial compensable rating for bilateral hearing loss In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. §4.85, Diagnostic Code 6100. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent eleven categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent eleven categories of decibel loss based on the pure tone audiometry test. The numerical designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss. The percentage evaluation will be found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical column appropriate to the numeric designation level for the ear having the poorer hearing. In certain situations, the Rating Schedule provides for rating exceptional patterns of hearing impairment. When the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be determined from either Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) or Table VIA (Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average), whichever results in the higher numeral. Each ear is evaluated separately. Only when the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz numeral will the Roman numeral designation then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a compensable disability rating for the service-connected bilateral hearing loss. The Veteran underwent a VA examination in June 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 35 50 35 LEFT 10 60 40 25 Speech discrimination testing using the Maryland CNC word test was 100 percent in the right ear and of 96 percent in the left ear and his puretone average was 33.75 dB in both the right ear and the left ear. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and in the left ear. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating. Upon review of the evidence of record, the Board finds that the medical evidence does not support a compensable rating for the Veteran’s bilateral hearing loss disability. The Board is limited in evaluating hearing loss to the mechanical application of the rating schedule under the specified testing methods. For example, any impact of hearing loss on the Veteran’s daily life cannot be accounted for outside the rating tables of 38 C.F.R. § 4.85. Therefore, the non-compensable evaluation currently-assigned for his bilateral hearing loss accurately reflects his disability picture as contemplated under the VA rating criteria throughout the rating period on appeal. Additionally, the Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The June 2015 VA examiner noted the Veteran’s reports that he sometimes had difficulty understanding conversations, which impacted his ordinary conditions of daily life, including ability to work. The Board finds these comments are sufficient to comply with the applicable VA policies. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). As such, the Board finds that the functional effects of the Veteran’s bilateral hearing loss are adequately addressed by the record. Accordingly, after a review of the evidence the Board finds that a preponderance of the evidence is against a finding that the service-connected bilateral hearing loss warrants a compensable rating during the period on appeal. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.85, Diagnostic Code 6100; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a vision disability is remanded. In a VA Gulf War general medical examination in May 2015, the examiner opined that the Veteran’s claimed eye disability was less likely than not related to a specific exposure event experienced by during active service in Southwest Asia. The examiner’s rationale was based on a finding that the Veteran’s vision condition was most likely related to his diagnosis of dry eyes and as such, is a disease with clear and specific etiology and diagnosis. In a June 2015 VA examination, the examiner opined that the Veteran did not have any vision problems or any other eye conditions related to a chronic disability pattern due to Southwest Asia service. In a September 2015 VA examination, the examiner noted the Veteran’s refractive error was not a result of military service. The Board notes that another VA examination is warranted as there is conflicting diagnoses of record, to include dry eyes and refractive error. The June 2015 VA examiner opinion was limited to the Veteran’s service in Southwest Asia and did not adequately opine as to whether any eye disability was related to his additional active service at Fort Knox and Fort Stewart. The September 2015 VA examiner’s opinion was limited to the diagnosis of refractive error and did not provide a rationale in support of the opinion. As such, these opinions are inadequate for adjudication purposes. Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, a remand is necessary to obtain an adequate VA etiological opinion as to all eye-related diagnoses for all periods of active service. 2. Entitlement to service connection for latent tuberculosis (TB) is remanded. The Veteran was provided a VA examination in June 2015. During examination, the examiner acknowledged the Veteran’s diagnosis of latent tuberculosis during active service in 2006. The examiner noted that prior to departing to Kuwait, the Veteran’s December 2005 STRs showed a negative purified protein derivative (PPD) test. After service in Kuwait, PPD testing of the Veteran in February 2006 and April 2006 were positive. The examiner noted that prophylactic treatment was administered in April 2006. The June 2015 examiner provided conflicting opinions by checking both options: that the claimed condition was “at least as likely as not” as well as “less likely than not” incurred in or caused by the claimed in-service injury, event, or illness. The examiner did not specify the condition for these conflicting opinions as related to the left knee pain, back pain, or tuberculosis. Although the examiner noted the Veteran’s prophylactic treatment for latent tuberculosis, there was no indication from the record whether the disability had resolved. The June 2015 VA examiner did not perform the necessary laboratory tests to properly diagnose latent tuberculosis post-service. Accordingly, the Board finds that this inadequate opinion is of limited probative value. Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, a remand is necessary to clarify a current disability, if any, specifically, active or latent tuberculosis. 3. Entitlement to sleep apnea, also claimed as sleep disturbances, is remanded. In a VA Gulf War general medical examination in May 2015, the examiner opined that the Veteran’s sleep disturbances were most likely due to his diagnoses of major depressive disorder, moderate, and alcohol use disorder, moderate. A review of the record shows that in addition to sleep impairment, the Veteran is specifically claiming sleep apnea. In VA examinations in June 2015, September 2016, and November 2016 related to the Veteran’s psychiatric disabilities, the examiners noted symptoms that applied to the Veteran’s psychiatric diagnoses included poor sleep and sleep disturbance. However, there was no mention regarding the Veteran’s claimed sleep apnea. A VA examination related to the Veteran’s claimed sleep disability has not been conducted. A review of the STRs show the Veteran’s reports of difficulty breathing and feeling tired after sleeping in April 2005 and December 2005. Considering there is objective evidence of sleep impairment noted by medical providers after separation from active service, there are indications of symptoms possibly related to sleep apnea during military service, and the fact that the Veteran has not been provided an adequate VA examination related to this particular claim, the Board finds that an examination is necessary as the low threshold for obtaining such examination has been surpassed in this case. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). 4. Entitlement to service connection for a disability manifested by chest pain, right knee pain, and left knee pain, to include as due to undiagnosed illness is remanded. The Veteran was provided a VA Gulf War general medical examination in May 2015. The examiner opined that it was less likely than not that the Veteran had a disability pattern of knee strain and chest pain that is related to a specific exposure event experienced during service in Southwest Asia. The only rationale the examiner provided was that evaluation did not reveal a diagnosis relating to the knee strain or chest pain. The Veteran was provided another VA examination in June 2015. After the examination, the examiner opined that although there was knee strain and knee pain reported and documented in medical records, there was no confirmed left knee condition during the June 2015 examination. The examiner provided conflicting opinions by checking both options: that the claimed condition was “at least as likely as not” as well as “less likely than not” incurred in or caused by the claimed in-service injury, event, or illness. The examiner did not specify the condition for these conflicting opinions. The Board finds the May 2015 Gulf War examiner’s opinion is inadequate because it is conclusory, and did not explain how the examiner determined that the Veteran’s symptoms are not an undiagnosed illness or a medically unexplained chronic multisymptom illness. Additionally, the June 2015 VA examiner provided conflicting opinions as to the etiology of the left knee pain, did not provide an etiology related to the chest pain and right knee pain, and did not adequately discuss possible causes for the chest pain, right knee pain, or left knee pain noted. Accordingly, the Board finds that these inadequate opinions are of limited probative value. Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, the Board highlights that service connection is not precluded solely when there is no diagnosis, if there is nevertheless functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Thus, a remand is necessary to obtain adequate VA etiological opinions as to any right knee, left knee, or chest pain diagnoses and/or symptoms for all periods of active service, to include as due to undiagnosed illness. The matter is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of his response, the RO must obtain and associate with the claims file the Veteran’s updated VA treatment records. All attempts to secure this evidence must be documented in the claims file by the RO. 2. Schedule the Veteran for VA examinations with an appropriate specialist for his claimed sleep disorder, right knee pain, left knee pain, chest pain, and vision condition. (a) Please identify, by diagnosis, if applicable, the Veteran’s condition(s) related to sleep disorder, to include sleep apnea, right knee pain, left knee pain, chest pain, and vision condition. All pertinent diagnoses of record must be addressed. (b) Determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s reported signs and symptoms regarding these claimed conditions are a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, or an otherwise undiagnosed illness? If so, please discuss any symptoms or claimed conditions that are distinct from the medically unexplained chronic multisymptom illness or undiagnosed illness. As indicated previously, 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. Objective indications of a chronic disability include both “signs” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Accordingly, the Veteran’s reports of symptoms are probative and should be considered and discussed as necessary. (c) If any of these conditions are not a medically unexplained chronic multisymptom illness, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s condition is related to his active duty service? A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. (Continued on the next page)   3. Schedule the Veteran for a VA examination with an appropriate specialist for his claimed tuberculosis. Perform any necessary laboratory tests to determine if the Veteran has a current diagnosis of latent or active tuberculosis. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel