Citation Nr: 21066261 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-36 035A DATE: October 29, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to a rating in excess of 30 percent for depressive disorder is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for diabetes mellitus, to include as secondary to the lumbar spine disability is remanded. Entitlement to service connection for hypertension, to include as secondary to the lumbar spine disability is remanded. Entitlement to service connection for a right elbow disability, to include as secondary to the lumbar spine disability is remanded. FINDING OF FACT The Veteran's obstructive sleep apnea had its onset in service and has continued since service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2018); 38 C.F.R. § 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to March 1992. This matter came before the Board of Veterans Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a videoconference hearing in his July 2017 VA Form 9. However, in August 2020 he submitted a request through his attorney to withdraw that hearing request, stating that he would prefer to move forward without a hearing, and asked the Board to cancel his scheduled hearing. The Board therefore deems the hearing request withdrawn and will therefore adjudicate the issues on appeal based upon the evidence of record. 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his current disability of sleep apnea began in service and has continued since service. The Board concludes that the Veteran's obstructive sleep apnea began during service and has been continuous since service and that service connection is therefore warranted. Service connection may be established for any disease or disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, "the preponderance of the evidence must be against the claim." Id. at 54. Service treatment records are silent for complaints, treatment, or diagnosis of sleep apnea. July 2014 VA treatment records noted a high suspicion of sleep apnea and the Veteran was scheduled for a sleep clinic follow up. September 2014 private treatment records document a current diagnosis of obstructive sleep apnea. The Veteran submitted multiple lay statements regarding the onset of his sleep apnea symptoms. An October 2014 statement from his ex-wife reported that she was married to him during service and for two years after separation, and that she noticed his loud snoring and that he would stop breathing while sleeping. She reported that she would try to turn him over and to hit him and call his name to wake him up. The Veteran's current wife also submitted an October 2014 statement that she had witnessed the Veteran's snoring and waking gasping and choking for air since they married in 2010. In an October 2014 statement, fellow servicemember M.D. reported that he was the Veteran's roommate during service in Alaska and he observed the Veteran's sleep problems during that time. He specifically stated that the Veteran snored loudly and would stop breathing, then wake and jump as if he was startled. He stated that the problem got so bad that the Veteran had to sleep in a different part of the room and that it also caused problems on field training exercises on night missions. In another October 2014 statement, fellow servicemember R.S. reported that he served with the Veteran from November 1990 to January 1992, and they spent a lot of time together on TDY and field training exercises. He said that he remembered numerous times when he saw the Veteran appear to stop breathing during sleep and also remembered an irritating snoring problem. He reported that he would often wake the Veteran up to see if he was breathing or to get him to change his position to try to stop the snoring. The Board notes that lay evidence is competent to report lay-observable symptoms such as loud snoring and gasping and the onset of those symptoms and assigns the statements from the Veteran's wives and fellow servicemembers significant probative weight. The Veteran has submitted competent evidence that his sleep symptoms began during service and have been ongoing and chronic since that time. His ex-wife and two fellow servicemembers have submitted specific testimony that they observed symptoms of loud snoring and waking gasping for air both during service and immediately after separation from service. His current wife's evidence indicates that the same symptoms continued thereafter. This lay testimony is supported by the subsequent diagnosis of sleep apnea. There simply is no competent evidence in the claim file to disassociate the current diagnosed obstructive sleep apnea from the manifestations in service and after service. The Board therefore finds that the evidence of record supports the conclusion that the Veteran's obstructive sleep apnea began in service and has been continuous since service. Service connection is therefore warranted. 38 C.F.R. §§ 3.102, 3.303(d). REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for depressive disorder The Veteran's most recent VA examination for his service-connected depressive disorder on appeal occurred in November 2015. Because it has been almost 6 years since the last VA examination, contemporaneous examinations are required to assess the current severity of his depressive disorder. See Green v. Derwinski, 1 Vet. App. 121 (1991). 2. Entitlement to service connection for tinnitus 3. Entitlement to service connection for a bilateral hearing loss disability A November 2015 VA audiological examination diagnosed recurrent tinnitus and noted the Veteran's reports that it had persisted for many years, but found it was not due to service. The rationale was that there was no record of the condition in the service treatment records and a November 2013 hearing test indicated no diagnosis of tinnitus. The Board finds that this opinion is inadequate as it disregarded the Veteran's competent lay evidence of tinnitus for many years due to the lack of contemporaneous medical records, particularly in the case of a wholly lay observable disability such as tinnitus. The Board also notes that the records from the November 2013 VA audiology consult are silent for any discussion of tinnitus, let alone a finding that tinnitus was not present. There is therefore no indication in the record that tinnitus was evaluated at that consult. As the November 2015 opinion was inadequate, remand for a new opinion is required. Regarding bilateral hearing loss, the November 2015 VA examination did not find audiometric results showing a hearing loss disability for VA purposes. However, the Board notes that nearly 6 years have passed since that examination. In addition, the November 2015 examiner did not provide word recognition test results, stating that the use of word recognition scores was not appropriate due to inconsistent scores. The Board notes, however, that the record also contains an August 2014 private audiological evaluation score which shows that speech discrimination was performed on that occasion, and there is no indication in that report that word recognition scores were not appropriate for the Veteran. While the August 2014 private examination did not state whether the Maryland CNC word list was used, the report nonetheless indicates that word recognition scores may be able to be obtained. Remand is therefore required to obtain a contemporaneous examination and a more complete picture of the severity of the Veteran's bilateral hearing loss. See Green v. Derwinski, 1 Vet. App. 121 (1991). The Board also notes that the records from the November 2013 VA audiology consult appear to be incomplete. The record notes that a comprehensive assessment was performed and that results could be viewed under "Tools-audiogram display." Those audiometric results, however, do not appear to have been associated with the claim file. Upon remand, the complete November 2013 audiometric results should be associated with the claim file. 4. Entitlement to service connection for diabetes mellitus, to include as secondary to the lumbar spine disability The Veteran contends that his diabetes mellitus is secondary to his service connected lumbar spine disability. At the November 2015 VA examination, he reported that his back disability made him unable to exercise and that this caused him to gain weight and develop diabetes. This raises the question of whether obesity was an intermediate step between the service connected disability and diabetes mellitus. While service connection is not allowed for obesity on its own, obesity could act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 1-2017. The November 2015 VA examiner found that diabetes was not due to service or to the lumbar spine disability. As a rationale, the examiner stated that diabetes was a chronic condition that affected the metabolism of glucose and that there was no medical basis to indicate that it was secondary to the lumbar spine disability. This opinion is inadequate as the examiner only made a generic statement regarding the nature of diabetes and did not provide a true rationale regarding either direct service connection or the question of aggravation. In addition, the examiner did not address the Veteran's reports of weight gain when discussing the question of whether diabetes was caused by the lumbar spine disability. Remand for a new examination is therefore required. 5. Entitlement to service connection for a bilateral foot disability A November 2015 VA examination diagnosed degenerative arthritis of the bilateral feet. The Veteran reported that it was due to both his diabetes and his lumbar spine disability. The examiner provided an opinion that the left foot disability was not due to service, noting the Veteran's in-service foot pain but stating as a rationale that x-rays showed osteoarthritis of the feet that was appropriate for age and weight. The examiner did not address either the right foot or the question of secondary service connection, and remand for a new examination is therefore required to obtain the required opinions. Moreover, as the Veteran contends that his foot disability is secondary to diabetes, this issue must also be remanded as inextricably intertwined with the remanded issue of service connection for diabetes. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when the adjudication of one issue could have "significant impact" on the other issue). 6. Entitlement to service connection for hypertension, to include as secondary to the lumbar spine disability The Veteran contends that his hypertension is secondary to his service connected lumbar spine disability as he is unable to exercise and gained weight and also because of his chronic pain. This raises the question of whether obesity was an intermediate step between the service connected disability and diabetes mellitus. Again, obesity can as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 1-2017. The November 2015 VA examiner found that hypertension was not likely due to the lumbar spine disability, stating as a rationale that hypertension was unrelated to joint pain so not secondary to the lumbar spine disability. The Board notes that the examiner did not address the question of aggravation and the opinion is therefore inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Remand for a new examination is therefore required. The Board also notes that the opinion did not address the contentions regarding either obesity or chronic pain, which should be obtained upon remand. 7. Entitlement to service connection for a right elbow disability, to include as secondary to the lumbar spine disability A November 2015 VA examination diagnosed right elbow olecranon spur but found that it was not due to service. As a rationale, the examiner stated that the Veteran had normal movement and he could not estimate functional loss during flare ups as he did not witness a flare up. The examiner also stated that he had no basis to say the right elbow disability was due to the lumbar spine disability. The opinion regarding secondary service connection did not address the question of aggravation and is therefore inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). In addition, the opinion appears to be based on a finding of no disability due to normal range of motion, but the examination is inadequate regarding functional loss as the examiner declined to offer an opinion as to functional loss during flare ups due to a lack of direct observation of function under those circumstances. Sharp v. Shulkin, 29 Vet. App. 26 (2017). This inadequacy is particularly significant as the Veteran reported pain when bending and raising his arm above his head, and pain that causes functional impairment can qualify as a disability." Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Remand for a new examination is therefore required to obtain an accurate picture of the Veteran's right elbow disability and obtain a new etiological opinion. The matters are REMANDED for the following action: 1. Obtain the complete records form the November 2013 VA audiology consult and associate them with the claim file. 2. After the development in (1), schedule the Veteran for an appropriate VA examination to determine the current level of severity of his depression. The examiner should review the file and provide a complete rationale for all opinions expressed. 3. After the development in (1), schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current bilateral hearing loss or tinnitus disability. The examiner is to address all pertinent manifestations of any bilateral hearing loss disability and the severity of any and all manifestations found, to include pure tone thresholds, speech recognition scores. If testing cannot be performed, the examiner should indicate the reason. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current bilateral hearing loss or tinnitus disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 4. After the development in (1), schedule the Veteran for an appropriate VA examination, to determine the etiology of his diabetes mellitus. The examiner should review the file and provide a complete rationale for all opinions expressed. In providing the opinions, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The examiner should provide the following opinions: a) Whether the Veteran's diabetes mellitus is at least as likely as not (50 percent or greater probability) related to the Veteran's active service. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes was caused by weight gain. c) If the provider finds that diabetes was caused by weight gain, please address whether weight gain was due to any service-connected disability, including the Veteran's lumbar spine disability. 5. After the development in (1), schedule the Veteran for an appropriate VA examination, to determine the etiology of his hypertension. The examiner should review the file and provide a complete rationale for all opinions expressed. In providing the opinions, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The examiner should provide the following opinions: a) Whether the Veteran's hypertension is at least as likely as not (50 percent or greater probability) related to the Veteran's active service or whether it was caused or aggravated by the Veteran's lumbar spine disability, to include his medications and chronic pain. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by weight gain. c) If the provider finds that hypertension was caused by weight gain, please address whether weight gain was due to any service-connected disability, including the Veteran's lumbar spine disability. 6. After the development in (1), schedule the Veteran for an appropriate VA examination, to determine the etiology of any current bilateral foot disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current bilateral foot disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service or whether it was caused or aggravated by the Veteran's service connected back disability or by diabetes. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 7. After the development in (1), schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current right elbow disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current right elbow disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service or whether it was caused or aggravated by the service connected lumbar spine disability. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 8. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.