Citation Nr: 21069881 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-49 860A DATE: November 22, 2021 ORDER Service connection for sleep apnea is granted. Service connection for tinnitus is granted. A total disability rating based on individual unemployability (TDIU) is granted. Special monthly compensation (SMC) at the housebound rate is granted. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for left knee degenerative arthritis is remanded. Service connection for right knee degenerative arthritis is remanded. FINDINGS OF FACT 1. The evidence shows the Veteran's sleep apnea is caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). 2. Resolving all reasonable doubt in the Veteran's favor, his tinnitus had its onset during active service and has continued since. 3. Throughout the period on appeal, the Veteran's PTSD precluded him from obtaining and maintaining substantially gainful employment. 4. The Veteran has been granted a TDIU based solely on his PTSD, and he has a disability rating of 60 percent for coronary artery disease effective January 11, 2018. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. 4. The criteria for SMC at the housebound rate are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to July 1972 in the U.S. Marine Corps, including service in Vietnam. He was awarded the Combat Action Ribbon, Vietnamese Cross of Gallantry with palm, Vietnamese Service Medal with 3 stars and frame, Vietnamese Meritorious Unit Citation, and Vietnamese Campaign Medal with device. This matter comes before the Board of Veterans' Appeals (Board) from February 2015 and April 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in June 2020. As an initial matter, the Board notes that the Veteran's claim for service connection for sleep apnea was initially denied in an August 2013 rating decision. Although the Veteran did not appeal that decision, in February 2014 he submitted a statement requesting reconsideration of the August 2013 rating decision and submitted new and material evidence. The claim was again denied in February 2015, in which the RO indicated that the previous denial was confirmed and continued. As new and material evidence was received within one year of that decision which necessitated the RO review and reissue a rating decision as to the previously denied issue, the Board finds that the August 2013 rating decision was not final and therefore new and material evidence is not necessary as to the claim for service connection for sleep apnea. See 38 C.F.R. § 3.156(b). Additionally, regarding the Veteran's claims for service connection for bilateral hearing loss and tinnitus, the Board notes that additional relevant military personnel records were received by VA in January 2020. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. Id. Accordingly, new and material evidence is not needed to reopen a previously denied claim when relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. As additional relevant military personnel records were added to the record after the claims were decided, the Board finds that new and material evidence is not required, and the claims for service connection for bilateral hearing loss and tinnitus are reviewed on a de novo basis. Finally, the Board notes that a notice of disagreement was submitted by the Veteran in May 2018 regarding the issues of service connection for a neck condition and bilateral hand neuropathy. The RO issued a statement of the case in January 2020 and the Veteran submitted a substantive appeal in March 2020. However, the RO closed the appeal regarding these issues for a failure to respond, and these issues were not certified to the Board. It is unclear from the record as to the basis of the RO action, and this matter is REFERRED to the RO for appropriate action. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). Sleep Apnea The Veteran contends that his diagnosed sleep apnea is related to his service-connected PTSD. For the reasons discussed below, the Board finds it is at least as likely as not that the Veteran's service-connected PTSD caused or aggravated his diagnosed sleep apnea. In a February 2014 letter, the Veteran's treating physician stated that the Veteran likely had sleep apnea many years prior to his sleep study and likely had undiagnosed and untreated PTSD. The physician also stated that there is a strong correlation between sleep apnea and PTSD. In March 2016, a VA examiner opined, with a complete rationale, that the Veteran's sleep apnea is at least as likely as not aggravated beyond its natural progression by his service-connected PTSD. In January 2019, the Veteran's treating physician opined that the Veteran's sleep apnea is at least as likely as not related to his military service. However, a rationale was not provided. The Veteran also submitted a private opinion in September 2020. The private physician opined that the Veteran's sleep apnea is more likely than not related to his service-connected PTSD. The Board finds this opinion adequate because it is supported by a complete rationale and supported by medical evidence. The Board acknowledges that in October 2019, a VA physician opined that the Veteran's sleep apnea is less likely than not caused or permanently aggravated beyond the normal progression by his service-connected PTSD. However, this is not the correct standard for secondary service connection. For secondary service connection to be warranted based on aggravation, there has to be any increase in the disability regardless of permanence. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). As the examiner relied on an incorrect standard in providing their opinion, the Board affords their opinion little probative weight. Accordingly, as the evidence shows that the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.310. Tinnitus The Veteran contends that his tinnitus is related to in-service hazardous noise exposure. The Board finds that the first two elements have been satisfied. The Veteran has a current disability of tinnitus, a disability capable of lay observation. He has competently and credibly reported current tinnitus symptoms. Additionally, the Board finds that the Veteran was exposed to acoustic trauma during active service. The Veteran's military occupational specialty (MOS) as noted on his DD-214 was rifleman, which has a high probability of noise exposure. Regarding the third element, nexus, the evidence consists of medical evidence and the Veteran's lay statements. The Veteran was afforded a VA examination in July 2010; however, the examination is inadequate because it is conclusory. Accordingly, the opinion is afforded little probative weight. The Veteran testified that he has had tinnitus since he separated from service. See June 2020 Hearing Testimony. Based on the foregoing, the Board finds the evidence is at least in relative equipoise as to whether his current tinnitus is related to service. Resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is granted. Increased Rating As a preliminary matter, the Board notes that the Veteran indicated he wanted to appeal all of the issues on the September 2018 statement of the case, including entitlement to a rating higher than 70 percent for PTSD and a TDIU. See November 2018 VA Form 9. However, during the June 2020 Board hearing, the Veteran's representative clarified that the Veteran was only appealing the issue of entitlement to a TDIU based on his service-connected PTSD. Therefore, the Board will not address whether entitlement to a higher rating for PTSD is warranted. TDIU The Veteran contends that he is unemployable due to his PTSD. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry in determining whether a TDIU is warranted is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.16, 4.19. During the appeal period, the Veteran was service connected for PTSD and coronary artery disease. He has been rated at 70 percent for PTSD since March 2, 2010. Accordingly, the Veteran has met the schedular criteria for a TDIU. The evidence of record shows that the Veteran has completed high school. The Veteran reported that he worked in construction until December 2012 and retired as a direct result of his PTSD symptomatology. See January 2016 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability; see also June 2020 Correspondence. Regarding functional impairment of the Veteran's service-connected PTSD, the evidence of record shows that the Veteran has had consistent impairment of his occupational capabilities due to his PTSD. During the June 2020 Board hearing, the Veteran testified that he left his job in 2012 due to conflicts with other employees. The Veteran was afforded a VA examination in September 2014. The examiner noted that the Veteran's symptoms included hypervigilance, hyper arousal, intrusive thoughts and images of the original traumatic events, avoidance of stimuli associated with the original traumatic events, nightmares, isolation and withdrawal from others and activities, depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The Veteran was afforded a VA examination in February 2016. The examiner noted that the Veteran's symptoms included depressed mood, anxiety, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported that he only sleeps four hours per night. The examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms with decrease work efficiency and ability to perform occupational tasks only during period of significant stress, or symptoms controlled by medication. Although the February 2016 VA examiner noted some improvement of the Veteran's PTSD symptomatology, during the June 2020 Board hearing, the Veteran and his wife testified that his symptoms have stayed the same since the previous examination. Moreover, the Board finds that the other evidence of record is more consistent with the September 2014 VA examination throughout the appeal period. In April 2017, a private vocational expert opined that it is unreasonable to expect the Veteran to be able to maintain any form of gainful employment when considering the severity of his functional impairments of his activities of daily living as described in the July 2010 rating decision. The vocational expert stated that the Veteran is unable to maintain effective work and social relationships and his memory is impaired to the degree that he is unable to complete tasks due to loss of attention or focus. The vocational expert explained that all work requires the ability to maintain effective relationships with coworkers and supervisors, behave appropriately, and complete job tasks in a timely manner. Additionally, the vocational expert stated that the Veteran's ability to function independently, appropriately, or effectively is seriously impaired, thereby resulting in occupational and social deficiencies. The examiner further explained that without the ability to function independently, it is illogical to expect a person to be able to manage the requirements of the workplace, including completing job tasks, maintaining attention and concentration, maintaining appropriate pace, dealing appropriately with coworkers, supervisors, and the general public, adhering to specifications, and meeting employer demands in job performance. The vocational expert concluded that the Veteran is totally unemployable. The Board finds the April 2017 private opinion highly probative because the vocational expert considered the totality of the functional limitations of the Veteran's service-connected PTSD and compared his limitations with standard requirements of employment. Additionally, the opinion is well-reasoned and consistent with the other evidence of record. Based on the foregoing, the Board finds that entitlement to a TDIU is warranted effective January 13, 2016, the date that VA received the Veteran's application for entitlement to a TDIU. Resolving reasonable doubt in the Veteran's favor, the Board finds that throughout the period on appeal, the Veteran's PTSD precluded him from obtaining and maintaining substantially gainful employment. SMC VA has a duty to infer a claim for SMC when the evidence of record indicates potential entitlement. See Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC at the housebound rate is payable by law when a veteran has a single service-connected disability rated at 100 percent and additional service-connected disabilities independently ratable at 60 percent. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). As noted above, the Veteran has been granted a TDIU based solely on his service-connected PTSD. An award of a TDIU predicated on a single disability may form the basis for an award of SMC. Bradley v. Peake, 22 Vet. App. 280 (2008). Based on the TDIU assigned for PTSD, as well as the rating of 60 percent for coronary artery disease effective January 11, 2018, the Veteran meets the statutory criteria for SMC at the housebound rate. Accordingly, SMC at the statutory housebound rate is warranted effective January 11, 2018. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS FOR REMAND Service Connection for Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is related to in-service hazardous noise exposure. He was afforded a VA examination in July 2010. However, the Board finds the opinion is inadequate for adjudication purposes because it is conclusory. As such, the Board finds that remand is warranted to obtain an addendum VA opinion. Service Connection for Left and Right Knee Degenerative Arthritis The Veteran contends that his left and right knee degenerative arthritis is related to service. During the June 2020 Board hearing, the Veteran testified that he jumped out of helicopters on landing zones approximately three times, and his legs got stuck almost daily while walking through rice paddies while serving in Vietnam. Additionally, he testified that he carried 75-80 pounds on his back. The Veteran has not been afforded a VA examination. As such, the Board finds that remand is warranted to afford the Veteran a VA examination to determine the nature and etiology of his left and right knee degenerative arthritis. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran's bilateral hearing loss. The claims file and all pertinent records must be made available to the examiner for review. If an examination is needed to provide a complete opinion, one should be scheduled. After review of the record, the clinician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset in service, within one year following separation from service, or was causally related to service. A discussion of the facts and medical principles involved (to include acoustic trauma and military noise exposure) should be considered. The clinician should note the Veteran's military occupational specialty and that in-service noise exposure has been conceded. The clinician should specifically consider the Veteran's June 2020 hearing testimony. It is not a sufficient rationale for a negative nexus opinion merely to state or assume that the Veteran's hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the Veteran's service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The clinician must explain the rationale for all opinions, citing to supporting clinical data and/or medical texts or treatises as deemed appropriate. If the clinician determines that a requested opinion cannot be given without resort to speculation, the clinician must explain the reason for that conclusion. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bilateral knee disability. The claims file, including a copy of this remand, must be made available to the examiner for review. All necessary tests and studies should be performed, and all findings reported in detail. After complete review of the claims file, the examiner should identify all diagnoses related to the Veteran's claimed bilateral knee disability throughout the appeal period. For each diagnosis, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's disability had its onset in service or is otherwise related to any in-service injury, event, or disease. The examiner must consider the Veteran's medical history and lay statements, including the Veteran's June 2020 Board hearing testimony that he jumped out of helicopters on landing zones approximately three times, and his legs got stuck almost daily while walking through rice paddies while serving in Vietnam and carried 75-80 pounds on his back. The examiner is advised that an opinion based solely on lack of documentation in service and since service is not sufficient and that the Veteran's assertion of continuity of symptoms must be addressed in the opinion. The examiner is advised that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. All provided opinions must be supported by complete rationale. If the examiner determines that a requested opinion cannot be made without resort to speculation, they should say why that is. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kernen, 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.