Citation Nr: 21063151 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 19-22 881 DATE: October 13, 2021 ORDER Entitlement to service connection a bilateral ear disorder, characterized as vertigo and ear infections, is granted. REMANDED Entitlement to service connection for a low back disorder, claimed as residuals of a low back injury, is remanded. Entitlement to service connection for left knee arthritis is remanded. Entitlement to service connection for bilateral hip arthritis is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his bilateral ear disorder, characterized as vertigo and ear infections, is at least as likely as not related to active duty service. CONCLUSION OF LAW The criteria for service connection for a bilateral ear disorder, characterized as vertigo and ear infections, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1979 to January 1982. The Veteran testified before the undersigned Veterans Law Judge in February 2021 at a Board of Veterans' Appeals (Board) hearing. A transcript is of record. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection a bilateral ear disorder is granted. The Veteran is seeking service connection for a bilateral ear disorder, characterized as ear infections and vertigo. He specifically attests that an in-service motor vehicle accident and the subsequent explosion of an artillery simulator near his head. The Veteran has a current diagnosis of central vertigo, chronic otitis externa, and chronic suppurative otitis media. After a review of the evidence of record, the Board finds that service connection is warranted for the Veteran's bilateral ear disorder. The Veteran's service treatment records document the 1981 motor vehicle accident that the Veteran has previously reported. His treatment notes indicate that an artillery simulator exploded next to his head. There are no further indications of ear related issues in the Veteran's service treatment records, including on his separation examination, although the Veteran reports constant symptoms since his 1981 accident. The first indication of document treatment for the Veteran's bilateral ear disorder was in March 2016 when he was diagnosed with vertigo, approximately 34 years since his separation from service. Thus, service connection based upon continuous symptoms is not warranted. Service connection may still be established if his bilateral ear disorder can be shown to be directly related to service via a nexus. To this end, the Veteran was afforded VA examinations in March 2016, January 2017, and June 2019. Additionally, the Veteran submitted a medical opinion from a private physician in August 2018. The March 2016 examiner opined that service connection was not warranted as the Veteran did not have a diagnosis of an ear related disorder. Additionally, the examiner wrote that the Veteran's complaints of vertigo did not correlate with any credible vestibular disorder. There is no indication that the examiner attempted to elucidate, from the Veteran, any more information about his vertigo which had a diagnosis at this time. For these reasons, the Board finds this opinion to carry less probative weight than the other examinations. Next, at the January 2017 examination, the Veteran reported a history of vertigo and ear infections since his 1981 motor vehicle accident. The examiner opined that the Veteran's disorder was related to his in-service accident. The examiner noted the Veteran's lay statements about his symptoms along with the description of his injuries in 1981 to produce a positive opinion attributing his bilateral ear disorder to active duty service directly. Next, at the June 2019 examination, the Veteran's statements were not documented by the examiner. The examiner opined that the Veteran's bilateral ear disorder was less likely than not related to active duty service. The examiner noted the silence for such a disorder, or the Veteran's reported symptoms in his service treatment records. The examiner suggested that the development of his vertigo and ear infections was the result of changes occurred after active duty service and suggested a relationship between them and the Veteran's sleep apnea without further elaboration. The examiner did not discuss the January 2017 examination which provided a favorable opinion, nor did the examiner discuss the Veteran's 1981 motor vehicle accident. The private opinion submitted in August 2018 included an opinion from the Veteran's physician that his vertigo was caused by his 1981 motor vehicle accident. The physician indicated that he was familiar with the Veteran's medical history and that they reviewed and examined his medical records and history. The Board has also considered the Veteran's statements regarding his bilateral ear disorder and finds them credible in making its determination. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). This includes the Veteran's recitation of his 1981 motor vehicle accident, as well as the subjective symptoms that he has sought treatment for in the time since his active duty service. Taking all the evidence of record into account, the Board finds that the positive and negative evidence sits in relative equipoise and service connection for his bilateral ear disorder is warranted. While the March 2016 and June 2019 VA examiners opined that the Veteran's bilateral ear disorder was less likely than not related to active duty service, their opinions did not adequately discuss the Veteran's lay statements or his 1981 motor vehicle accident. Thus, the Board finds that they carry less probative weight than the positive examinations. The Veteran's credible statements regarding his bilateral ear disorder are persuasive in finding that despite the lack of documented in-service treatment for his ears. Accordingly, service connection should be granted to the Veteran for his bilateral ear disorder. Under the benefit of the doubt standard established by Congress, when the evidence is in relative equipoise, the law dictates the Veteran prevails. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. As such, the claim is granted. 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. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder, claimed as residuals of a low back injury, is remanded. 2. Entitlement to service connection for left knee arthritis is remanded. 3. Entitlement to service connection for bilateral hip arthritis is remanded. 4. Entitlement to service connection for sleep apnea is remanded. The Veteran is also seeking service connection for a low back disorder, a left knee disorder, a bilateral hip disorder, and sleep apnea. He attributes all of these disorders to his 1981 motor vehicle accident. After a review of the evidence of record, the Board finds that these claims require more development and must be remanded to the Regional Office (RO). Low Back disorder, Left Knee disorder, Bilateral Hip disorder The Veteran has yet to be administered VA examinations for his low back, left knee, and bilateral hip disorders. Additionally, the Veteran's 1981 motor vehicle accident has previously been established and accompanying medical treatment records are associated with the Veteran's case file. The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, examinations are warranted to determine the nature and etiology of the any low back, left knee, and bilateral hip disorder. Sleep Apnea It has been suggested that the Veteran's sleep apnea may be related to his active duty service either: due to his 1981 motor vehicle accident, symptoms in service, and/or via a secondary cause (the Veteran's vertigo which is now service connected). Given these theories and the fact that the Veteran has not been afforded a VA examination, the Board determines that this claim should also be remanded for the provision of a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The Regional Office (RO) should invite the Veteran to submit any additional evidence in support of his claims. 2. Schedule the Veteran for examinations with appropriate clinicians to evaluate the etiology of his low back, left knee, bilateral hip, and sleep apnea disorders. The examiners should rule in or rule out any diagnosable low back, left knee, and/or bilateral hip disorder. If no diagnosis is endorsed for the Veteran's low back, left knee, and/or bilateral hip, the examiners should provide an etiological opinion as to whether or not the claimed disorders cause pain with functional limitation, and if so, if the pain is etiologically related to the Veteran's period of service If a diagnosis for any low back, left knee, or bilateral hip disorder is endorsed, the examiners should provide an etiological opinion as to whether or not the diagnosed disorders are at least as likely as not (a 50 percent or greater probability) related to the Veteran's active duty service, including his 1981 motor vehicle accident. For the Veteran's sleep apnea, the examiner should provide opinions as to whether it is at least as likely as not (a 50 percent or greater probability) that his sleep apnea is etiologically related to the Veteran's period of service either due to his 1981 motor vehicle accident or his reported symptoms in service, or as secondary to his ear disability (which includes vertigo). The examiner should discus if the Veteran's sleep apnea is caused and/or aggravated beyond their natural progression by his service-connected ear disability. The entire claims file should be made available to the examiners and they should complete a review of it. All indicated studies deemed necessary by the examiners should be performed, and all findings of these tests should be reported in detail. All opinions must be accompanied by adequate reasons and bases. If the examiners cannot provide the requested opinion without resorting to mere speculation, the examiners should provide a complete explanation stating why this is so. In so doing, the examiners should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor