Citation Nr: 18157441
Decision Date: 12/12/18	Archive Date: 12/12/18

DOCKET NO. 15-20 329
DATE:	December 12, 2018
ORDER
Entitlement to service connection for sleep apnea with fatigue is granted.
Entitlement to service connection for headaches is granted.
Entitlement to service connection for a lower gastrointestinal disability, diagnosed as irritable bowel syndrome (IBS), is granted.
Entitlement to service connection for a neck disability, diagnosed as cervical spine arthritis, is granted.
Entitlement to service connection for a low back disability, diagnosed as lumbar spine degenerative disc disease and facet arthropathy of L5-S1, is granted.
Entitlement to service connection for a left shoulder disability, diagnosed as degenerative joint disease, is granted.
REMANDED
Entitlement to service connection for a respiratory disability, claimed as bronchitis and pneumonia, is remanded.
Entitlement to service connection for a rash condition of the back is remanded.
Entitlement to service connection for bilateral hearing loss is remanded.
FINDINGS OF FACT
1. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not the Veteran’s sleep apnea with fatigue began during active duty service. 
2. It is at least as likely as not the Veteran’s headaches are proximately due to his sleep apnea.
3. It is at least as likely as not the Veteran’s current IBS is related to his active duty service in Southwest Asia.
4. It is at least as likely as not the Veteran’s cervical spine arthritis is related to his active duty service.
5. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not the Veteran’s lumbar spine degenerative disc disease and facet arthropathy of L5-S1 is related to his active duty service.
6. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not the Veteran’s degenerative joint disease of the left shoulder is related to his active duty service.
CONCLUSIONS OF LAW
1. The criteria for service connection for sleep apnea with fatigue have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
2. The criteria for service connection for headaches have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310 (2017).
3. The criteria for service connection for a lower gastrointestinal disability, diagnosed as IBS, have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). 
4. The criteria for service connection for a neck disability, diagnosed as cervical spine arthritis, have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
5. The criteria for service connection for a low back disability, diagnosed as lumbar spine degenerative disc disease and facet arthropathy of L5-S1, have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
6. The criteria for service connection for a left shoulder disability, diagnosed as degenerative joint disease, have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In his June 2015 VA Form 9, the Veteran requested a hearing before the Board.  In a written statement received in May 2018, the Veteran’s representative cancelled the Veteran’s hearing before the Board and stated the Veteran did not wish to reschedule.  Accordingly, the Veteran’s hearing request has been withdrawn.  38 C.F.R. § 20.702(e).
In an August 2018 letter, the Veteran’s representative requested the record be left open 30 days.  More than 30 days have passed since the date of the representative’s request, and in September 2018 the representative submitted a brief which addresses all the issues before the Board.  Accordingly, the Board will proceed with adjudication of this matter.
In the June 2012 claim, the Veteran stated he seeks service connection for pneumonia and bronchitis.  The Board has combined these claims and recharacterized the issue as entitlement to service connection for a respiratory disability to afford the Veteran a broader scope of review.  Similarly, in the June 2012 claim, the Veteran stated he seeks service connection for diarrhea.  The Veteran’s statements indicate he claims this disability may also be IBS.  The Board has recharacterized the issue as entitlement to service connection for a lower gastrointestinal disability to afford the Veteran a broader scope of review.  See Browkowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009).
In the April 2015 statement of the case, the Agency of Original Jurisdiction (AOJ) also denied entitlement to service connection for a left hand condition, right wrist condition, vision condition, and fibromyalgia.  In June 2015, the AOJ received the Veteran’s VA Form 9 which indicated he did not wish to appeal those four issues.  Accordingly, the Board finds the Veteran did not perfect an appeal as to service connection for a left hand condition, right wrist condition, vision condition, or fibromyalgia and thus, those issues are not currently before the Board.  38 C.F.R. §§ 20.200, 20.202.
1. Entitlement to service connection for sleep apnea with fatigue 
The Veteran’s VA treatment records confirm a current diagnosis of sleep apnea per a home sleep study.  See October 2017 VA medical opinion; November 2013 VA home sleep test report.  In an October 2013 opinion, a VA examiner opined the Veteran’s fatigue is most likely due to his sleep apnea.
The Veteran’s service treatment records, as well as statements from the Veteran and his wife, indicate the Veteran experienced significant snoring and an altered sleep pattern during active duty service.  See, e.g., June 2016 wife statement; June 2015 Veteran statement; August 2013 Veteran statement; Naval Hospital Bremerton Department of Otolaryngology OSA Evaluation; January 1996 ENT consultation note.  The Veteran underwent a laser-assisted uvulopalatoplasty (LAUP) in March 1996.  The Veteran reports his snoring and sleep problems have continued since service, despite the in-service procedure.  See, e.g., August 2018 Veteran statement; June 2015 Veteran statement; August 2013 Veteran statement; November 2012 VA mental health consultation note.
In an October 2015 letter, Dr. H.I.K. from the Kelsey-Seybold Clinic, one of the Veteran’s treating physicians, stated he had reviewed the Veteran’s medical record, and opined the Veteran has had symptoms of sleep apnea since the early and mid-1990s.  Dr. H.I.K. also stated the Veteran may have had sleep apnea, but the Board affords this statement no weight of probative value as it was speculative, and Dr. H.I.K. did not provide a rationale.
In an August 2018 opinion, Dr. R.P. stated the Veteran’s service treatment records and post-service treatment records had been reviewed, and opined that is it more than likely the Veteran’s obstructive sleep apnea was incurred during the Veteran’s active duty service.  In an August 2018 treatment note accompanying the opinion, Dr. R.P. indicated an interview and examination of the Veteran had been completed.  Dr. R.P. noted the Veteran’s prior uvulectomy, and opined that since he has a hypopharyngeal collapse he must have had obstructive sleep apnea present during his active duty service.
In December 2013 and October 2017 opinions, VA examiners opined it is less likely than not the Veteran’s sleep apnea is related to his active duty service.  These opinions appear to be based mostly on findings that the Veteran did not report other symptoms of sleep apnea during his active duty service, the LAUP procedure could be used to treat snoring or mild sleep apnea, and that snoring can have many causes not related to sleep apnea.  
The Board finds the evidence for and against the Veteran’s claim is in relative equipoise, as based upon reviews of the medical evidence of record and examinations of the Veteran, Dr. R.P. and the VA examiners drew opposing conclusions as to whether the Veteran’s symptoms during and since service, and the LAUP procedure, were related to sleep apnea that began during service.  Accordingly, the Board affords the Veteran the benefit of reasonable doubt, and finds there is medical evidence of record establishing a link between the Veteran’s in-service complaints and the current diagnosis of sleep apnea with fatigue.  Therefore, the Board finds that a grant of service connection for sleep apnea with fatigue is warranted.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
2. Entitlement to service connection for headaches 
A September 2013 VA examination report diagnosed headaches.  In an October 2013 opinion, a VA examiner opined that the Veteran’s headaches are associated with his sleep apnea.  Accordingly, the Board finds it is at least as likely as not the Veteran’s headaches are proximately due to his now service-connected sleep apnea with fatigue, and therefore a grant of service connection on a secondary basis is warranted.  38 C.F.R. § 3.310.
3. Entitlement to service connection for a lower gastrointestinal disability, claimed as diarrhea 
The Veteran served on active duty from May 1991 to May 1997.  The Veteran’s service treatment records indicate the Veteran served on a ship in the Persian Gulf, and was sent to Bahrain for medical treatment.  See, e.g., May 1995 medical surveillance questionnaire; November 1992 consultation sheet from the U.S.S. Paul F. Foster to ASU SWA Bahrain Medical.  Accordingly, the Board finds the Veteran is a Persian Gulf Veteran who served in the Southwest Asia theater of operations.  38 C.F.R. § 3.317(e).
In a July 2018 independent medical opinion, Dr. T.R.C. indicated she had reviewed the claims file.  She stated the Veteran was formally diagnosed with IBS in 2014, and that his presentation of the disease is characterized by frequent defecation.  She also noted the Veteran’s report he has experienced these symptoms since active duty service.  See also December 2014 Kelsey-Seybold Clinic treatment note; October 2014 Kelsey-Seybold treatment note (reporting three-to-five bowel movements per day for the past 30 years).  Dr. T.R.C. noted that IBS is considered a medically unexplained chronic multisymptom illness.  See also 38 C.F.R. § 3.317(a)(2)(i).  Dr. T.R.C. opined that given the Veteran’s continuity of symptoms of IBS since his active military service, and his current diagnosis of IBS, it is at least as likely as not that the Veteran’s IBS is related to his military service, specifically his service in Southwest Asia.
Accordingly, resolving any reasonable doubt in the Veteran’s favor, the Board finds there is medical evidence of record establishing a link between the Veteran’s active duty service in the Southwest Asia theater of operations and his current IBS.  Accordingly, the Board finds that a grant of service connection is warranted for a lower gastrointestinal disability diagnosed as IBS.  
4. Entitlement to service connection for a neck disability
5. Entitlement to service connection for a low back disability
The Veteran’s service treatment records confirm that following a motor vehicle accident, the Veteran repeatedly complained of neck and back pain throughout November 1991.  
In the July 2018 independent medical opinion, Dr. T.R.C. noted the Veteran’s complaints of neck and back pain following the in-service motor vehicle accident, as well as the Veteran’s reports that he has experienced neck and back pain since service.  After a discussion of the process of arthritis, as well as arthritis in a younger person, and the Veteran’s reports, Dr. T.R.C. opined that given the Veteran’s documented in-service injuries to the neck and back, the continuity of symptoms since service, and the early age of onset of the disease, it is at least as likely as not that the Veteran’s arthritis of the cervical and lumbar spine is related to his military service.  See also April 2015 Kelsey-Seybold Clinic cervical spine x-ray report; November 2012 VA lumbosacral spine x-ray report.
In a September 2013 opinion, a VA back examiner opined it is less likely than not the Veteran’s current back disability is related to his active duty service because the Veteran had a one-time complaint of back pain in 1991 that resolved, and he did not have any treatment or complaints of back pain from 1991 until November 2012, so there was no evidence of a chronic, ongoing condition associated with military service.  The Board affords this opinion less weight of probative value because the Veteran’s service treatment records including multiple complaints of back pain in 1991, and because the VA examiner did not address the Veteran’s competent reports of experiencing back pain throughout and since service.
Accordingly, the Board finds the evidence for and against the Veteran’s claims is at least in relative equipoise, and so the Board affords the Veteran the benefit of reasonable doubt, and finds there is medical evidence of record establishing a link between the Veteran’s neck and back injuries from the in-service motor vehicle accident and the current neck and back disabilities.  Therefore, the Board finds that grants of service connection for a neck disability and for a back disability are warranted.  See Gilbert, 1 Vet. App. 49.
6. Entitlement to service connection for a left shoulder disability
The Veteran contends his current left shoulder disability is related to injuries he suffered when he was beaten by a group of people in Thailand during his active duty service, which led to a Captain’s Mast.  See, e.g., June 2015 Veteran statement; November 2014 notice of disagreement; September 2013 VA initial PTSD examination report; November 2012 VA primary care initial evaluation note.
Neither the Veteran’s service treatment records nor his service personnel records document injuries to the Veteran’s left shoulder during service, or a Captain’s Mast regarding a fight in Thailand.  However, the Veteran’s service treatment records do include two reports by the Veteran that he was involved in a fight in Thailand.  See May 1997 Report of Medical History; January 1996 service treatment record.  
An August 2011 treatment record from the Kelsey-Seybold Clinic includes the Veteran’s report of left shoulder pain for 20 years.  The note states the pain began after a biking injury, however the word “biking” was then crossed out and the word “fighting” handwritten above it, though it is unclear who made this change.  However, the evidence of record does not indicate any other injuries to the Veteran’s left shoulder since service, and the Veteran has otherwise consistently reported throughout the evidence of record that his left shoulder was repeatedly hit by a group of people during a fight in Thailand, and that it has hurt since service.  The Veteran is competent to report what he has experienced.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Accordingly, the Board will afford the Veteran the benefit of reasonable doubt, and finds a left shoulder injury occurred during the Veteran’s active duty service.
In the July 2018 independent medical opinion, Dr. T.R.C. noted an August 2011 x-ray showed chronic degenerative joint disease changes of the left shoulder.  She also noted the evidence of record indicating the Veteran’s report of more than 20 years of left shoulder pain, continuously since the in-service beating.  Dr. T.R.C. opined that given the history of a significant in-service injury to the left shoulder, the continuity of symptoms, and his current diagnosis of arthritic disease that was clearly chronic of a long-standing duration at the time of initial diagnosis, it is at least as likely as not that the Veteran’s left shoulder arthritis is related to his military service.
Accordingly, resolving any reasonable doubt in the Veteran’s favor, the Board finds there is medical evidence of record establishing a link between the Veteran’s current left shoulder disability and his active duty service.  Therefore, the Board finds that grants of service connection for a left shoulder disability is warranted.  See Gilbert, 1 Vet. App. 49.
REASONS FOR REMAND
1. Entitlement to service connection for a respiratory disability, claimed as bronchitis and pneumonia, is remanded.
In a June 2015 statement, the Veteran indicated he recevied treatment from Dr. R. in 2006 who said the Veteran’s lungs were not strong, diagnosed asthma, and prescribed an inhaler.  A remand is required to allow VA to obtain authorization and request these records.
The Board cannot make a fully-informed decision because no VA examiner has opined whether the Veteran’s current respiratory disability is related to his service in Southwest Asia.  The November 2013 VA examiner only noted the Veteran’s in-service treatment for pneumonia.  Further, the VA examiner did not address the assessments of bronchitis in the Veteran’s private treatment records, or the Veteran’s contentions regarding a current respiratory disability manifested by weakened lungs and/or reduced lung capacity.  A remand is necessary to afford the Veteran a new VA examination to determine the nature and etiology of any current respiratory disability.
2. Entitlement to service connection for a rash condition of the back is remanded.
The Veteran contends he has experienced a recurrent rash on his back since his active duty service for no apparent reasons, and contends this is related to his Southwest Asia service.  A VA examiner stated no skin lesions were present during a September 2013 examination, but did not address the Veteran’s reports regarding the nature of his back rash when it occurs.  In a November 2013 opinion, a VA examiner stated the Veteran’s reported rash on his back would not be related to a rash under his eyes noted in his service treatment records, but did not address the Veteran’s reports that his rash is related to his Gulf War service.  On remand, the AOJ should undertake appropriate efforts to afford the Veteran a VA examination when his rash on his back is present, or otherwise obtain evidence from the Veteran regarding the nature of the rash when it occurs, to include photographs and/or treatment records if possible.  The AOJ should then obtain an opinion as to the nature and etiology of any current back rash condition.
3. Entitlement to service connection for bilateral hearing loss is remanded.
A May 2013 VA primary care note indicates the Veteran was referred to audiology for his complaints of hearing loss, but treatment records dated after July 2013 are not associated with the claims file.  On remand the Veteran’s updated VA treatment records should be obtained.
Upon a September 2013 VA examination, the Veteran’s testing results did not indicate a bilateral hearing loss diability for VA purposes.  However, the September 2013 VA examiner did not address a March 2013 audiogram from Texas Professional Hearing which appears to indicate a current hearing loss disability purusant to 38 C.F.R. § 3.385.  On remand, the AOJ should afford the Veteran a new VA examination to determine the nature and etiology of any current hearing loss disability.
The matters are REMANDED for the following action:
1. Ask the Veteran to complete a VA Form 21-4142 for Dr. R. regarding his 2006 treatment for respiratory issues including asthma.  Make two requests for the authorized records from the provider, unless it is clear after the first request that a second request would be futile.
2. Obtain the Veteran’s relevant VA treatment records from July 2013 to the present.  Any audiograms associated with the Veteran’s VA treatment records should also be obtained and associated with the claims file.
3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current respiratory disability.  After a review of the claims file, and interview and examination of the Veteran, the examiner is asked to respond to the following inquiries:
a)	The examiner is asked to provide a medical statement explaining whether the Veteran’s disability pattern as concerns his respiratory complaints is:
1)	An undiagnosed illness;
2)	A diagnosable but medically unexplained chronic multisymptom illness of unknown etiology;
3)	A diagnosable chronic multisymptom illness with partially explained etiology; or
4)	A disease with a clear and specific etiology and diagnosis that fully accounts for the Veteran’s symptoms.
For any disease with a clear and specific etiology and diagnosis, the examiner should address whether that diagnosis fully accounts for the Veteran’s claimed symptoms.  
b)	For any disease with a clear and specific diagnosis, the examiner should opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) related to an in-service injury, event, or disease, including exposures to Gulf War environmental hazards.
The examiner should specifically address the Veteran’s reports that since his 1992 service in the Persian Gulf, which included environmental exposures while on watch above deck, he has experienced respiratory complaints including weakened lungs and/or reduced lung capacity, has had recurrent pneumonia, and experiences bronchitis about every year which he often self-treats.
4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current rash condition of the back.  To the extent possible, the AOJ should attempt to work with the Veteran to schedule his examination when his rash condition is flared and present.  The AOJ may also ask the Veteran to submit evidence regarding the nature of the rash when it occurs, to include photographs and/or treatment records, if possible. 
After a review of the claims file, and interview and examination of the Veteran, the clinician is asked to respond to the following inquiries:
a)	The clinician is asked to provide a medical statement explaining whether the Veteran’s disability pattern as concerns his back rash is:
1)	An undiagnosed illness;
2)	A diagnosable but medically unexplained chronic multisymptom illness of unknown etiology;
3)	A diagnosable chronic multisymptom illness with partially explained etiology; or
4)	A disease with a clear and specific etiology and diagnosis that fully accounts for the Veteran’s symptoms.
For any disease with a clear and specific etiology and diagnosis, the clinician should address whether that diagnosis fully accounts for the Veteran’s claimed symptoms.  
b)	For any disease with a clear and specific diagnosis, the clinician should opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) related to an in-service injury, event, or disease, including exposures to Gulf War environmental hazards.
The clinician should specifically address the Veteran’s in-service complaints of a rash beneath his eyes, as well as the Veteran’s reports that he has experienced a recurrent rash on his back for no apparent reason since his active duty service, which he usually self-treats with creams.
5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current hearing loss disability.  After a review of the claims file, and interview and examination of the Veteran, the examiner is asked to respond to the following inquiry:
Is it at least as likely as not (i.e. probability of 50 percent or greater) that any current hearing loss disability was either incurred in, or is otherwise related to, the Veteran’s military service?
The examiner should specifically address March 2013 audiogram from Texas Professional Hearing.  
The examiner should also address the Veteran’s contention that he failed a hearing test and/or hearing loss was noted in about 1993, and that his hearing loss is related to in-service noise exposure including sleeping above the engine room, working with pneumatic tools all day, and working on the flight line.  The examiner should also address the Veteran’s contention that he has experienced progressive hearing loss since service.
6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal.  If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 
DONNIE R. HACHEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Delhauer, Counsel