Citation Nr: 20007535 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 14-11 168 DATE: January 30, 2020 ORDER Entitlement to a compensable rating for service-connected bilateral hearing loss is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for bilateral ankle disability is denied. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD) or sinusitis, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension, is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss has been manifested by no worse than Level I hearing impairment in both ears. 2. The most probative evidence of record does not demonstrate that the Veteran’s back disability was caused by or due to service. 3. The most probative evidence of record does not demonstrate a current bilateral ankle disability. 4. The most probative evidence of record does not demonstrate that the Veteran’s OSA was caused by or due to service, to include as secondary to PTSD or sinusitis. 5. The most probative evidence of record does not demonstrate that the Veteran’s erectile dysfunction was caused by or due to service, to include as secondary to hypertension. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, 4.86a, Diagnostic Code 6100. 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 3. The criteria for service connection for bilateral ankle disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for OSA, to include as secondary to PTSD or sinusitis, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 5. The criteria for service connection for erectile dysfunction, to include as secondary to hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Marine Corps from March 1968 to December 1969. The Veteran testified at a videoconference hearing in November 2017 before the undersigned Veterans Law Judge. The Board remanded the appeal in February 2018 in order to obtain new examinations and opinions regarding the claims on appeal. Exams and opinions were completed in October 2019. Service connection for a right knee disability and hypertension was granted by the Regional Office in a November 2019 rating decision. Increased Rating Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through Level XI, representing profound deafness. See 38 C.F.R. § 4.85. An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, 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 are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). 1. Entitlement to a rating for service-connected bilateral hearing loss. The Board determines that a compensable rating is not warranted for the Veteran’s bilateral hearing loss. During his audiological examinations, he reported having to ask to people to repeat what they have said during conversation. On the authorized audiological evaluation in November 2010, pure tone thresholds, in decibels, were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 35 30 35 45 35 LEFT 36.25 30 35 35 40 Speech audiometry revealed speech recognition ability of 98 percent in each ear. When utilizing Table VI, the Veteran exhibits Level I hearing in both ears. Applying these results to Table VII, a noncompensable percent rating is for application. On the authorized audiological evaluation in September 2019, pure tone thresholds, in decibels, were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 41.25 25 40 50 50 LEFT 42.5 30 40 55 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear. When utilizing Table VI, the Veteran exhibits Level I hearing in both ears. Applying these results to Table VII, a noncompensable percent rating is for application. Therefore, based on the evidence of record, an initial compensable rating is not warranted. In considering the appropriate disability rating, the Board has also considered the Veteran’s statements that his disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his hearing loss disability according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s hearing loss disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report) directly address the criteria under which these disabilities are evaluated. In other words, the mechanical application of the rating criteria for evaluating bilateral hearing loss is consistent with a noncompensable rating. Service Connection Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). Service connection may also be granted for certain chronic diseases when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309; see Fountain v. McDonald, 27 Vet. App. 258; 38 C.F.R. § 3.309(a). “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present 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 even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 2. Entitlement to service connection for a back disability. The Veteran has a current diagnosis of degenerative disc disease per the October 2019 VA examination and x-ray. As such, the first element of service connection has been met. Review of his service treatment records does not show any diagnosis or treatment of a low back injury. The December 1969 separation exam indicated his spine was normal and no complaints or defects were noted. Treatment records show the Veteran had a diagnosis of lumbar disc disease as early as 2000. A May 2013 MRI of the spine showed mild lumbar spondylosis and disc herniations resulting in neural foraminal and lateral recess stenosis with corresponding nerve root impingement. In October 2013, he continued to complain of low back pain that radiated to his lower extremities, and was worse and more frequent on the left side. Degenerative joint disease and pain on flexion was noted in February 2014. The Veteran was afforded a VA examination in October 2019 and reported the onset of back pain without any specific injury that developed soon after his separation from service. The Veteran indicated it recurred in 1990s and an MRI showed degenerative disc disease, arthritis, and bulging discs. He did not have any treatment at that time. At the time of the exam, his treatment included pian medication, use of a TENS unit, and chiropractic adjustments. The examiner opined that his diagnosis was less likely than not incurred in or caused by service. Specifically, his symptoms did not begin until after separation and treatment at that time was temporary, followed by another period of temporary symptoms and treatment. The examiner indicated that the symptoms present at the time of the exam were only present for a few years prior and imaging conducted as part of the exam was consistent with age-related degenerative disc disease. As such, the second and third elements of service connection have not been met. Specifically, his service medical records did not show any complaints, treatment or diagnosis of a lumbar spine injury or disability. The Veteran even stated that his back pain began following service and there was no in-service trauma or injury. The earliest notation of a lumbar spine related diagnosis was in 2000, per treatment records. The October 2019 examiner indicated that his lumbar spine disability was not related to service because there was nothing noted in service, symptoms did not show up until years after separation, and x-rays and the evidence of record supported that his diagnosis was age-related. The Board finds that the most probative evidence of record does not support a finding of service connection for a lumbar spine disability. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for bilateral ankle disability. The Veteran has not demonstrated a current disability related to his bilateral ankles. In September 2010, he reported bilateral ankle pain, but there were no further complaints or follow-up. In September 2019, he was afforded a VA examination and after conducting several tests, the examiner determined that the Veteran did not have a current ankle disability. Specifically, the Veteran denied any current symptoms or flare-ups. Range of motion as normal and there was no pain on examination. Muscle strength and stability testing was normal. There was no evidence of muscle atrophy or ankylosis. The examiner opined that the claimed ankle problem was less likely than not incurred in or caused by service. The Veteran had no statement of complaint regarding his left ankle during service or subsequently. And although the right ankle was injured on active duty, it was considered acute and was never evaluated, treated, or diagnosed. On physical examination, his ankle was asymptomatic, as he had normal test results. To the extent that the Veteran believes that he has a bilateral ankle disability, he is not competent to provide a diagnosis in this case, as a diagnosis of a musculoskeletal disability requires expertise that the Veteran has not demonstrated. Consequently, the Board gives more probative weight to the competent medical evidence, including the testing conducted during the Veteran’s VA examination. The Board has considered the evidence in light of the case of Saunders v. Wilkie in which the United States Court of Appeals for the Federal Circuit addressed “the legal issue [of] whether pain without an accompanying pathology can constitute a “disability” under [38 U.S.C.] § 1110.” 886 F.3d 1356, 1363-64 (Fed. Cir. 2018) (overruling the Veterans Court’s holding in Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999)). The Federal Circuit held that the Veterans Court erred “as a matter of law in holding that pain alone, without an accompanying diagnosis or identifiable condition, cannot constitute a ‘disability’ under [38 U.S.C.] § 1110, because pain in the absence of a presently-diagnosed condition can cause functional impairment.” Id. The Federal Circuit “conclude[d] that pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Id. Further, the Federal Circuit held that “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that [] pain reaches the level of a functional impairment of earning capacity.” Id. There is no credible persuasive argument that the pain the Veteran previously experienced in his ankles was productive of functional impairment to be considered disabling or causing impairment of earning capacity. When questioned by the VA examiner regarding his impairment, he denied having any symptoms, and there has been no indication that his ankles impact his earning capacity. Therefore, the Board finds that a current disability has not been demonstrated at any point during the appeal period. Without a current disability, there can be no grant of service connection; therefore, the Veteran’s claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 4. Entitlement to service connection for OSA. The Veteran has a current diagnosis of OSA per the January 2012 and September 2019 VA examinations. As such, the first element of service connection has been met. He is currently service connected for sinusitis and PTSD. Therefore, the second element for secondary service connection has been met. As the first and second elements of secondary service connection have been met, this appeal turns on whether there is a medical nexus between his current diagnosis and his service, to include hs service-connected disabilities. As noted above, the Veteran was afforded VA examinations in January 2012 and September 2019. The January 2012 examiner confirmed a diagnosis of OSA in 2011. The Veteran reported that he had trouble sleeping when left the service and developed symptoms such as snoring, sore throat, and waking up frequently. Ultimately, the examiner found that his OSA was less likely than not due to his PTSD. The examiner noted the cause of OSA to be a structural problem, which occurred when the muscles that support the soft tissue in the throat temporarily relax. Due to that relaxation, the airway narrows or closes, and breathing is cut off momentarily. The examiner noted that there was no cause and effect relationship between the Veteran’s OSA and PTSD, nor was there any evidence of aggravation. The September 2019 examiner provided an opinion indicating that the Veteran’s OSA was not incurred in service or proximately due to or the result of a service-connected disability. There was no evidence of a diagnosis or treatment for sleep apnea or a sleep study conducted during service. Specifically, the examiner noted that observed snoring, unrestful sleep, gasping, trouble sleeping, shallow breathing, and insomnia were not indicative of OSA. Sleep apnea is diagnosed by the diagnostic standard apnea/hypoxia index in a sleep study. Definite risk factors for OSA include obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. The examiner also noted that review of the medical record including physical exam showed no evidence of significant nasal obstruction that would cause or aggravate OSA beyond its natural progression. There was no evidence of any significant upper airway soft tissue abnormalities. Based on the foregoing, service connection for OSA is not warranted. Regarding direct service connection, there is no indication the Veteran’s issues began during service. His service treatment records are negative for any complaints or diagnosis of problems sleeping or breathing issues. He has reported that he began having what he believed were sleep apnea symptoms after separation. The January 2012 examiner provided a through rationale for the stated opinion indicating that OSA could not be caused or aggravated by PTSD. The September 2019 examiner indicated that his OSA did not have its onset in service and there was no indication showing nasal obstruction that would cause or aggravate OSA due to sinusitis. Therefore, service connection was not found on any basis. The Board finds these opinions to be probative because the examiners provided a complete rationale in support of the stated conclusions. Although the Veteran is competent to describe his history of sleeping problems, he is not competent to render such a complex medical opinion regarding etiology of OSA. As such, the question of etiology in this case may not be competently addressed by lay evidence. Therefore, the most probative evidence of record indicates that the Veteran’s current OSA is not etiologically related to service or secondary to a claimed service-connected disability. With no probative evidence to the contrary, the Board finds that service connection for OSA is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension. The Veteran has a current diagnosis of erectile dysfunction per the September 2019 VA examination. As such, the first element of service connection has been met. He is currently service connected for hypertension. Therefore, the second element for secondary service connection has been met. As the first and second elements of secondary service connection have been met, this appeal turns on whether there is a medical nexus between his current diagnosis and his service, to include his service-connected hypertension. As noted above, the Veteran was afforded a VA examination in September 2019. After confirming his diagnosis, the examiner opined that he had no difficulties with erectile dysfunction until his early 50s. As for secondary service connection, high blood pressure had been diagnosed and treated five years prior and had no impact on his erectile dysfunction. There were no other medical conditions which could have caused, contributed, to or aggravated his erectile dysfunction. Based on the foregoing, service connection for erectile dysfunction is not warranted. Regarding direct service connection, there is no indication the Veteran’s erectile dysfunction issues began during service. The Veteran reported an onset in approximately 2000, years after his separation. Notably, his service treatment records are negative for any complaints or diagnosis of erectile dysfunction. The September 2019 examiner indicated that his hypertension had been treated with no effect on his erectile dysfunction; therefore, secondary service connection was not found. The Board finds this opinion to be probative because the examiner conducted a thorough examination and provided a complete rationale in support of the conclusions. Although the Veteran is competent to describe his history of erectile dysfunction, the cause of such symptoms involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and effect relationship. He is not competent to render such a complex medical opinion regarding etiology of such a disorder. As such, the question of etiology in this case may not be competently addressed by lay evidence. Therefore, the most probative evidence of record indicates that the Veteran’s current erectile dysfunction is not etiologically related to service or secondary to a service-connected disability. With no probative evidence to the contrary, the Board finds that service connection for erectile dysfunction is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. The October 2019 examination and opinion only focused on the right knee despite the February 2018 Board remand requesting an examination as to both knees. As such, a remand is required to schedule an examination for the left knee and provide an opinion to determine if it was incurred in or otherwise related to service. 2. Entitlement to service connection for a bilateral foot disability is remanded. The Veteran has indicated that his right knee disability has caused or aggravated his foot disabilities. Per the most recent examination, he has a diagnosis of plantar fasciitis and is service connected for a right knee disability. However, the September 2019 opinion only discussed direct service connection, noting that his symptoms did not appear until approximately 35 years following separation from service. The Board finds that a remand is appropriate to determine whether his foot disability was caused or aggravated by his service-connected right knee. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate examiner to conduct and examination and obtain an opinion addressing etiology of any diagnosed left knee disability. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a left knee disability that was either (a) caused by, or (b) aggravated by his service-connected right knee. The examiner is asked to provide an opinion as to both causation and aggravation. 2. Forward the claims file to an appropriate examiner for a records review opinion to determine the cause of the Veteran’s bilateral foot disability. It is left to the examiner providing the opinion to determine whether a physical examination is warranted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed foot disability was either (a) caused by, or (b) aggravated by his service-connected right knee. The examiner is asked to provide an opinion as to both causation and aggravation. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.