Citation Nr: 21065324 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-32 063 DATE: October 25, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for degenerative disc disease (DDD) and spondylosis of the lumbar spine is granted. Service connection for lumbar radiculopathy of the left lower extremity is granted. Service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is granted. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a neurological disorder of the right upper extremity is remanded. Entitlement to a total disability rating on the basis of individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed hearing loss disability is related to in-service acoustic trauma. 2. The evidence is at least in equipoise as to whether the Veteran's lumbar spine disorder first manifested in service and was incurred during service. 3. The Veteran's currently diagnosed left lower extremity radiculopathy is secondary to the now service-connected lumbar spine disability. 4. The Veteran's reported in-service stressor is corroborated by a statement from a fellow servicemember. 5. The medical evidence of record is at least in equipoise as to whether the Veteran's acquired psychiatric disability, diagnosed as PTSD and MDD, is the result of his reported in-service stressor event. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria to establish service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for radiculopathy of the left lower extremity as secondary to the now service-connected lumbar spine disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria to establish service connection for an acquired psychiatric disorder, including PTSD and MDD, are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2012, June 2013, and July 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The VLJ who held the 2019 hearing is no longer at the Board. In October 2020, the Board notified the Veteran that he could request another hearing with a different VLJ. No response was received; thus, the Board finds his hearing request satisfied. In August 2020, the Board dismissed the issues pertaining to service connection for right cervicothoracic pain and entitlement to a rating in excess of 10 percent for tinnitus. The Board also remanded the nine issues currently on appeal in order to obtain updated VA treatment records and for issuance of a supplemental statement of the case. The issues have been properly returned to the Board following the requested development. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Hearing Loss The Veteran maintains that he has hearing loss as a result of in-service noise exposure. A hearing loss disability for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC (controlled speech discrimination) test are less than 94 percent. 38 C.F.R. § 3.385. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). After a review of the medical evidence of record, the Board finds that the Veteran has a current bilateral hearing loss disability for VA purposes. In this regard, the Veteran's speech recognition scores during an April 2013 VA audiological examination were 84 percent in the right ear and 80 percent in the left ear. See 38 C.F.R. § 3.385. Further, the Board finds that the Veteran was exposed to acoustic trauma in service. The Veteran's DD Form 214 shows that he served in infantry. The Veteran has competently and credibly reported that he was exposed to artillery, grenades, and mortars during service. Further, the Veteran has already been awarded service connection for tinnitus based on in-service noise exposure. As such, the Board finds the Veteran was exposed to acoustic trauma while in service. The Veteran was afforded a VA audiological examination in April 2013. At that time, the examiner confirmed a diagnosis of bilateral sensorineural hearing loss. It was then opined that the Veteran's hearing loss was not related to service, to include his military occupational specialty of mechanized infantry (with exposure to artillery, grenades, and mortars). In support of the opinion, the examiner noted that the Veteran's audiograms were normal during service. Therefore, the Veteran's hearing loss must have had onset after service. The Board finds that the 2013 VA medical opinion lacks probative value for several reasons. First, the VA examiner's opinion appears to be based, in large part, on the lack of contemporaneous medical records documenting diagnoses of hearing loss in service without consideration of the Veteran's lay statements regarding experiencing hearing loss. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (observing that "the medical examiner impermissibly ignored the appellant's lay assertions that he sustained a back injury during service"). This is especially problematic given that the examiner provided a positive medical nexus opinion regarding tinnitus based on the same in-service noise exposure. Moreover, service connection is not precluded for hearing loss which first met VA's definition of disability at 38 C.F.R. § 3.385 after service. See Hensley at 159; see also 38 C.F.R. § 3.303 (d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence). Further, a review of the Veteran's service treatment records shows that he was afforded a Report of Medical Examination in August 1976 (at service separation); however, in the audiological section of the report, no hearing acuity test results were noted and the following was indicated: "audiometer broken." As such, it appears that the Veteran was not afforded an audiological examination at service separation. In an August 1976 note, it was indicated that the Veteran had passed a whisper test; however, the Board finds that these tests are less reliable than tests performed using an audiometer. Moreover, an undated Report of Medical Examination (presumably performed between service entrance (in 1974) and service separation in (1976)) shows that the Veteran had puretone thresholds at or above 20 decibels at 500, 1000, and 3000 Hertz in the right ear and at 500, 2000, and 4000 Hertz in the left ear. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the Veterans Court has also held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). The 2013 examiner did not address these results. Despite the inadequacy of the April 2013 VA medical opinion, the Board finds that a remand for a new medical opinion is not necessary, as the Board finds that the current evidence of record is at least in equipoise as to whether the Veteran's hearing loss is related to service. Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear in active service, such is not required. See 38 C.F.R. § 3.303 (d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence); Hensley, 5 Vet. App. at 159 (holding that service connection is not precluded for hearing loss which first met VA's definition of disability at 38 C.F.R. § 3.385 after service). The evidence of record demonstrates acoustic trauma in service and the Veteran has reported noticing that his hearing diminished during service and continued to worsen since separation. See e. g., August 2011 report from Dr. Yocom (Veteran reported being exposed to tanks, mortars, artillery fire, and truck engines during service with progressive bilateral hearing loss and tinnitus). The Veteran has competently and credibly reported that he was exposed to loud noises during service as a result of his duties in the infantry division. The Veteran has already been awarded service connection for tinnitus based, at least in part, on his reported in-service noise exposure. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is related to service. As such, the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Lumbar Spine and Left Lower Extremity Radiculopathy Initially, the Board finds that the Veteran has been diagnosed with DDD and spondylosis of the lumbar spine. See January 2013 MRI and X-ray reports; see also October 2012 VA examination report. In regard to his in-service injury, service records show that on March 13, 1975, the Veteran complained of low back pain after playing basketball three days prior. He reported having a sharp pain in his back and sides when straightening after bending. On March 20, 1975, the Veteran was again seen for continued back pain. On March 25, 1975, the Veteran was noted to have "persistent" back pain which was worse with bending and lifting. The impression noted was a low back strain. In January 1976, the Veteran similarly reported complaints of low back pain, with no recent trauma to the area. The pain was again noted to occur when straightening his back after bending. The impression noted was "muscle spasm." The Veteran's claim essentially turns on whether there is a nexus between his current back diagnoses and his in-service injury and complaints. Upon review of the record, the evidence is in equipoise as to whether the Veteran's lumbar spine disorder is etiologically related to service. The evidence includes a May 2019 nexus statement from the Veteran's treating physician (name illegible). The statement indicated that the physician had treated the Veteran and was familiar with his medical history. It was then opined that the Veteran's chronic low back pain/sprain was related to service as the Veteran was seen several times during service low back spasms and back pain. Moreover, the physician noted that no definitive diagnostic tools (like x-rays) had been conducted during service. The Veteran also submitted a report from Dr. Yocom, a chiropractor, in August 2011. At that time, it was noted that the Veteran had persistent low back pain in service which persisted following service separation. During the evaluation, the Veteran reported that he was charged with carrying bazooka equipment while in service, totaling over 100 pounds. Dr. Yocom opined that the Veteran's low back condition was related to service, to include carrying and lifting the bazooka equipment. VA obtained a spine examination in October 2012, which confirmed a diagnosis of DDD of the lumbar spine; however, an opinion as to the etiology of the Veteran's disorder was not provided. The Board finds that the May 2019 nexus statement from the Veteran's treating physician's is probative and weighs in favor of the Veteran's claim. The medical opinion was provided after a review of the Veteran's medical history and relevant service records documenting the in-service spine injuries and treatment. The physician also provided a rationale for the opinion rendered. Upon review of all the evidence of record, lay and medical, the Board finds that the evidence is in relative equipoise as to whether the Veteran's current lumbar spine disability is etiologically related to service. Resolving doubt in the Veteran's favor, the Board finds that service connection is warranted. 38 C.F.R. § 3.102. The Veteran further maintains that, as a result of his now service-connected lumbar spine disability, he has developed radiculopathy in the left lower extremity. As indicated in a November 2016 VA treatment record, the Veteran complained of pain in his left leg which radiated to his left lower back. He reported pain in his thigh and a tingling sensation into the foot. Upon examination, the Veteran was found to have tenderness at the left paravertebral region of the SI joint. There was also tenderness to the left hip and left thigh along the L2-L3 dermatome. A diagnosis of "sciatica/lumbar radiculopathy" was noted. The Board finds that the Veteran's left lower extremity radiculopathy is secondary (caused by) his now service-connected lumbar spine disability. As such, service connection is warranted. Acquired Psychiatric Disorders The Veteran maintains that, during service, he witnessed a fellow soldier commit suicide by a self-inflicted gunshot wound to the head during a New Year celebration in 1975-1976. To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Although the RO has not confirmed the in-service incident, the Veteran submitted a buddy statement from W. M. corroborating the likely occurrence of the event. The Veteran has also consistently reported the incident to VA mental health professionals in connection with his psychiatric treatment. See e. g., April 2016 VA mental health note; see also June 2020 VA mental health psychosocial assessment note (Veteran reported witnessing a fellow soldier commit suicide via self-inflicted GSW (the mental images haunt him, "My friend blew his brains out in front of me.")). As such, the Board finds the stressor to be corroborated. The question is then whether the Veteran's acquired psychiatric disability, diagnosed as PTSD and MDD throughout the mental health treatment records, was caused by the reported stressor. The evidence includes an October 2016 VA psychiatric note (Veteran was diagnosed with DSM PTSD and MDD, severe) and a private January 2016 PTSD Disability Benefits Questionnaire by Dr. Hernandez. These reports discuss the Veteran's in-service stressor and his psychiatric symptoms. In a May 2019 VA treatment record, the Veteran was noted to continue to "report trauma symptoms from witnessing a fellow soldier commit suicide by gun while on AD." For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for an acquired psychiatric disability, to include PTSD and MDD, have been met, and the Veteran's claim is granted. 38 C.F.R. § 3.102. REASONS FOR REMAND Headaches VA treatment records confirm that the Veteran experiences headaches. During the March 2019 Board hearing, the Veteran indicated his belief that his headaches may be related to a service-connected disability, including tinnitus, PTSD, and/or his low back disorder. He also maintains that he experienced headaches in service. The Board finds that a VA examination and medical opinion is required to address the nature and likely etiology of the Veteran's headaches. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (a VA examination or opinion is necessary where other criteria are met and there is "insufficient competent medical" evidence for VA to decide the claim). Erectile Dysfunction The Veteran maintains that his erectile dysfunction is secondary to his now service-connected lumbar spine disability. See March 2019 Board Hearing Transcript at pg. 21. The Veteran also submitted a report from Dr. Yocom dated in August 2011, which indicated that the Veteran's erectile dysfunction was related to his lumbar spine injury; however, no rationale in support of the opinion was provided. In an October 2012 VA examination, the examiner indicated that the etiology of the Veteran's erectile dysfunction was due to his "co-morbid conditions," however, the specific conditions were not listed. On remand, a medical opinion should be obtained regarding the likely etiology of the Veteran's erectile dysfunction, to include whether it is secondary to a service-connected disability. OSA During the March 2019 Board hearing, the Veteran indicated that his tinnitus made it difficult for him to sleepin other words, aggravated his sleep apnea. Although a VA examination and medical opinion pertaining to the Veteran's OSA was obtained in May 2016, the examiner did not address the theory of aggravation. Moreover, the Veteran has now been awarded service connection for his psychiatric disability, which includes symptoms relating to difficulty falling asleep, staying asleep, and chronic sleep impairment. On remand, the Veteran should be afforded a new VA examination and medical opinion to address whether his OSA is secondary to his service-connected tinnitus and/or psychiatric disabilities. The Board notes that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Neurological Disorder of the Right Upper Extremity The Veteran maintains that he has a right upper extremity neurological disorder that is related to an in-service elbow injury. See March 2019 Board Hearing Transcript at pgs. 25-26. Service records confirm that the Veteran was seen in June 1975 for pain in the right elbow due to a fall. The impression noted was "mild muscle strain." The Veteran has not been afforded a VA examination pertaining to his right upper extremity disorder. On remand, a VA examination and medical opinion should be obtained to address the nature and likely etiology of the Veteran's right upper extremity disorder, if any. McClendon, 20 Vet. App. 81. TDIU The issue of entitlement to a TDIU is intertwined with the claims being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, adjudication of the TDIU claim is deferred. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Schedule an appropriate VA examination for the Veteran's claimed headaches. The examiner must review all pertinent documents in the record. The examiner is asked to: (a.) Provide an opinion as to whether it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's headaches were incurred in service or are otherwise related to service. (b.) Provide an opinion as to whether it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's headaches are either caused or aggravated by a service-connected disability, to include PTSD, MDD, tinnitus, and/or lumbar spine disability. (c.) All opinions should be accompanied by a clear rationale. **The examiner is reminded that a recent precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. Ward v. Wilkie, 31 Vet. App. 233 (2019). 3. Schedule an appropriate VA examination for the Veteran's erectile dysfunction. The examiner must review all pertinent documents in the record. The examiner is asked to: (a.) Provide an opinion as to whether it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's erectile dysfunction were incurred in service or are otherwise related to service. (b.) Provide an opinion as to whether it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's erectile dysfunction are either caused or aggravated by a service-connected disability, to include PTSD, MDD, lumbar spine disability, left lower extremity radiculopathy disability (to include medications used to treat the service-connected disabilities). (c.) All opinions should be accompanied by a clear rationale. **The examiner is reminded that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. Ward v. Wilkie, 31 Vet. App. 233 (2019). 4. Schedule an appropriate VA examination for the Veteran's sleep apnea. The examiner must review all pertinent documents in the record. The examiner is asked to: (a.) Provide an opinion as to whether it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's sleep apnea was incurred in service or are otherwise related to service. (b.) Provide an opinion as to whether it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's sleep apnea is either caused or aggravated by a service-connected disability, to include PTSD, MDD, and/or tinnitus disability. (c.) All opinions should be accompanied by a clear rationale. **The examiner is reminded that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. Ward v. Wilkie, 31 Vet. App. 233 (2019). 5. Schedule an appropriate VA examination for the Veteran's claimed right upper extremity neurological disorder. The examiner must review all pertinent documents in the record. The examiner is asked to: (a.) List all diagnoses pertaining to the Veteran's right upper extremity. (b.) Provide an opinion as to whether it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's right upper extremity disorder were incurred in service or are otherwise related to service, to include the in-service injury to the right elbow in June 1975. (c.) All opinions should be accompanied by a clear rationale. 6. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.