Citation Nr: 21002384 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-15 534 DATE: January 13, 2021 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for a chronic headache disability is granted. Entitlement to service connection for bruxism with myofascial pain dysfunction is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to a rating in excess of 10 percent for a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. In a final December 2013 decision, service connection for a bilateral hearing loss disability was denied. 2. The evidence associated with the claims file since the December 2013 decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for a bilateral hearing loss disability. 3. Resolving reasonable doubt in his favor, the Veteran’s obstructive sleep apnea was incurred during active service. 4. Resolving reasonable doubt in his favor, the Veteran’s chronic headache disability was incurred during active service. 5. The Veteran’s bruxism with myofascial pain dysfunction is aggravated by his service-connected posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for a bilateral hearing loss disability are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 2. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for service connection for a chronic headache disability are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 4. The criteria for service connection for bruxism with myofascial pain dysfunction are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2010 to January 2011. He had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Army National Guard of Florida. He is a recipient of the Purple Heart medal. This case comes before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and September 2015 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Claim to Reopen – Hearing Loss In a final December 2013 decision, the RO denied service connection for a bilateral hearing loss disability because the evidence did not show that the Veteran had a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2013). The Board finds that new and material evidence has been received to reopen the claim of service connection for a bilateral hearing loss disability. In March 2015, a private chiropractor opined that the Veteran had 30 percent loss of hearing in each ear and that his hearing loss was at least as likely as not related to service. The Board finds that evidence new and material. Therefore, the claim is reopened. Service Connection – Sleep Apnea The Veteran maintains that his obstructive sleep apnea was incurred during or is related to active service. During the December 2019 hearing, he stated that he believed his sleep apnea was related to the burn pits he was exposed to during his service in Southwest Asia as well as his service-connected PTSD. He stated that he snored during service and that other service members had difficulty sleeping in the same room as him. His wife, who met him when he returned from his deployment, stated that he had always snored very loudly, that he tossed and turned all night, and that he woke up a lot during the night. The Veteran’s service treatment records indicated that on his December 2010 post-deployment health assessment, he reported experiencing problems sleeping or still feeling tired after sleeping. Post service, an April 2012 VA treatment record indicated that an overnight unattended sleep study was performed in March 2012. The reporting clinician, a respiratory therapist, indicated that the study did not reveal a substantial sleep related breathing disturbance. In July 2012, at a pulmonary consultation, the Veteran reported that he always felt exhausted and had been having problems sleeping since he returned from his deployment. The clinician, a physician’s assistant, reviewed the sleep study and indicated that the Veteran has mild obstructive sleep apnea. She noted that portable studies can underestimate the severity of sleep apnea and that the Veteran was still having snoring as well as choking arousals/apneas. A February 2020 Disability Benefits Questionnaire (DBQ) for sleep apnea, which was completed by a private physician, noted that the Veteran had a diagnosis of obstructive sleep apnea. In this case, the Veteran reported experiencing difficulty sleeping and daytime fatigue since he returned from his deployment. In March 2012, he underwent a sleep study. Although the respiratory therapist did not believe the results were significant, the pulmonary specialist believed the results, along with the Veteran’s reported symptoms, were sufficient to diagnosis him with mild obstructive sleep apnea. In February 2020, a private physician also noted that the Veteran had a diagnosis of obstructive sleep apnea. The Board notes that lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if lay testimony describing symptoms at the time supports a later diagnosis of a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Based upon the above, the Board finds that the evidence for and against the Veteran’s claim is at least in relative equipoise. Therefore, resolving reasonable doubt in his favor, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection - Headaches The Veteran maintains that his headaches are related to a mild TBI that he sustained from the detonation of an improvised explosive device (IED). During the December 2019 hearing, he stated the he began experiencing headaches almost immediately after the IED blast. He stated that he was treated for headaches, but after trial and error with various medications, he learned to deal with the headaches by using over the counter Excedrin Migraine. The Veteran’s service treatment records indicated that that in July 2010, an IED detonated approximately 10 meters to the right side of his vehicle as they passed. All vehicle occupants heard and felt the blast and experienced sway from the concussion and the force of the explosion. The convoy did not stop and continued the mission. The Veteran reported that he began to suffer from a headache within five minutes of the blast that lasted more than three hours. He stated that he also suffered from light sensitivity lasting more than three days after the attack. He was diagnosed with mild TBI. At his December 2010 post-deployment health assessment, he reported that he had headaches after the IED blast but was not still bothered by bad headaches. Post service, an August 2011 VA treatment record indicated that the Veteran complained of headaches since his deployment. In December 2011, he reported experiencing headaches and was put on a trial of magnesium oxide and naproxen. In July 2012, he reported that he had headaches all the time. The Veteran’s records from the Army National Guard indicated that on a May 2013 Health Questionnaire for Dental Treatment, he noted that he had frequent headaches. During a November 2013 VA examination, the Veteran reported he constantly got headaches in different spots and at different times. He stated that his headaches occurred daily or every other day and lasted from one hour to five hours. The examiner opined that the Veteran did not have persistent a post concussive syndrome, noting that two days after the IED blast, the Veteran stated that his headaches had resolved. The examiner also noted that six months later, on his post-deployment health assessment, he indicated that he had no residual effects. The examiner stated that the Veteran’s headache symptoms were most likely related to anxiety or anxiety type disorder and not a mild traumatic brain injury. During an August 2015 VA examination, the Veteran reported that he continued to experience headache since he sustained a traumatic brain injury during service. He stated that he had daily headaches since the incident. The VA examiner noted that the Veteran’s traumatic brain injury had not resolved and that his headaches were a progression or/secondary to the traumatic brain injury, noting that the Veteran did not have any complaints of headaches prior to the traumatic brain injury. In February 2010, a private physician opined that the Veteran’s migraine headaches were caused by or a result of his service-connected PTSD/anxiety disorder. Based upon the above, the Board finds that the evidence for and against the Veteran’s claim is at least in relative equipoise. Therefore, resolving reasonable doubt in his favor, the Board finds that service connection for a chronic headache disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310; Gilbert, 1 Vet. App. at 53. Service Connection – Bruxism with Myofascial Pain Dysfunction The Veteran maintains that his bruxism with myofascial pain dysfunction is related to his service-connected PTSD. During the December 2019 hearing, he stated that his dentist told him that he was most likely clenching his jaw and stressing while he was sleeping at night. In a May 2014 letter, Dr. F.W., a private dentist, indicated that the Veteran was diagnosed with bruxism and myofascial pain dysfunction. In February 2020, he opined that the etiology of the myofascial pain dysfunction was unknown but was significantly exacerbated by stress. He indicated that flare-ups are commonly triggered by PTSD. In this case, the Veteran is service connected for PTSD and a private dentist has opined that the PTSD aggravates his bruxism with myofascial pain dysfunction. There is no medical opinion to the contrary. Therefore, the Board finds that service connection for bruxism with myofascial pain dysfunction is warranted. 38 C.F.R. § 3.310. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. The Veteran’s claims file includes VA treatment records dated from August 2013 to October 2013, and from May 2014 to January 2017; however, records dated from October 2013 to May 2014 have not been obtained. Therefore, the Board finds that a remand is necessary to obtain any outstanding VA treatment records, to include records dated from October 2013 to May 2014. Regarding the Veteran’s claim for service connection for a hearing loss disability, a VA examination was conducted in December 2013. At that time, his hearing acuity did not meet the requirements to be considered a disability for VA purposes. See 38 C.F.R. § 3.385. During the December 2019 Board hearing, he reported that his hearing had worsened since then. Therefore, the Board finds that a remand is necessary for an additional VA examination. Regarding the Veteran’s claims for service connection for bilateral shoulder, bilateral knee, cervical spine, and right foot disabilities, he maintains that those disabilities are related to wear and tear from the rigors of military service. In March 2015, a private chiropractor, P.Y., indicated that the Veteran had degenerative joint disease of the shoulders, knees, and cervical spine, and right foot pes planus with plantar fasciitis. He opined that those disabilities were related to service; however, the rationale for that opinion is unclear. Furthermore, there are no X-rays of record that document degenerative joint disease. Therefore, the Board finds that a remand is necessary for a VA examination to determine the nature and etiology of the claimed disabilities. Regarding the Veteran’s claim for service connection for a respiratory disability, he maintains that the disability was caused by exposure to burn pits in Southwest Asia. In March 2015, a private chiropractor indicated that the Veteran had chronic obstructive pulmonary disease (COPD)/bronchial asthma due to exposure to burn pits; however, there are no treatment records related to those diagnoses. A July 2015 VA examination was conducted in July 2015. It was noted that the pulmonary function test (PFT) was essential normal with reduced residual volume. The diagnosis was “reduced residual lung volume with subjective dyspnea on exertion.” The examiner indicated that it would be speculation to opine on whether the Veteran’s respiratory condition was caused by environmental exposures in Southwest Asia; however, the examiner did not address the March 2015 diagnoses by the private chiropractor and did not address whether the Veteran had an undiagnosed illness. Therefore, the Board finds that a remand is necessary for an additional VA examination. Regarding the Veteran’s claim for a heart disability, he maintains that the disability is related to service and/or his service-connected PTSD. During the December 2019 hearing, he stated that he had supraventricular tachycardia and a severe anxiety disorder and was taking a mild betablocker to keep his heart rate under control. A July 2012 VA treatment record noted that he had marked sinus bradycardia and marked sinus arrhythmia. In September 2012, it was noted that he was seen for tachycardia symptoms that had been occurring since June 2012. The assessment was tachycardia and possible supraventricular tachycardia. It was noted that so far there was no documentation for supraventricular tachycardia. In November 2013, he received a profile that included unspecified cardiac arrythmia. In February 2020, a private physician, Dr. E.W., opined that the Veteran’s heart palpitations were caused by PTSD; however, the rationale for that opinion is unclear. Therefore, the Board finds that a remand is necessary for a VA examination to determine the nature and etiology of the Veteran’s claimed heart disability. Regarding the claim for an increased rating for service-connected TBI, during the December 2019 hearing, the Veteran stated that the disability had worsened in severity since the most recent VA examination was conducted in August 2015. Therefore, the Board finds that a remand is necessary for an additional VA examination. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file, to include VA treatment records dated from October 2013 to May 2014. 2. Then, schedule the Veteran for a VA audiological evaluation to determine the nature and etiology of any currently present hearing loss. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should determine whether the Veteran has a hearing loss disability for VA purposes. If so, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present hearing loss is etiologically related to the Veteran’s active service. A rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed bilateral shoulder, bilateral knee, cervical spine, and right foot disabilities. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should identify all bilateral shoulder, bilateral knee, cervical spine, and right foot disabilities that may be present. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present bilateral shoulder, bilateral knee, cervical spine, and right foot disability was incurred in or is otherwise related to the Veteran’s active service. If the Veteran does not meet the criteria for a diagnosis of the shoulders, knees, cervical spine, or right foot, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s symptoms are due to an undiagnosed illness or medically unexplained chronic multisystem illness resulting from service in Southwest Asia during the Gulf War. If so, the examiner should also comment on the severity of symptomatology and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner should address the March 2015 private chiropractor’s opinion. A rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed respiratory disability. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should identify all respiratory disabilities that may be present, to include COPD and bronchial asthma. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present respiratory disability was incurred in or is otherwise related to the Veteran’s active service, to include exposure to burn pits. If the Veteran does not meet the criteria for a diagnosis of a respiratory disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s symptoms are due to an undiagnosed illness or medically unexplained chronic multisystem illness resulting from service in Southwest Asia during the Gulf War. If so, the examiner should also comment on the severity of symptomatology and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner should clarify whether “reduced residual lung volume with subjective dyspnea on exertion” are symptoms or a diagnosis. The examiner should also address the March 2015 private chiropractor’s opinion. A rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed heart disability. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should identify all heart disabilities that may be present. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present heart disability was incurred in or is otherwise related to the Veteran’s active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present heart disability was caused or is aggravated by the Veteran’s service-connected PTSD. In rendering the opinion, the examiner is requested to address the February 2020 private medical opinion. If the Veteran does not meet the criteria for a diagnosis of a heart disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s symptoms are due to an undiagnosed illness or medically unexplained chronic multisystem illness resulting from service in Southwest Asia during the Gulf War. If so, the examiner should also comment on the severity of symptomatology and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner should clarify whether heart palpitations or tachycardia are symptoms or a diagnosis. A rationale for all opinions expressed must be provided. 6. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected TBI. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include a full description of the functional impact of the service-connected disability on the Veteran’s ordinary activity. 7. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 8. Then, readjudicate the issues remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mishalanie, 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.