Citation Nr: 21074888 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-20 501 DATE: December 16, 2021 ORDER Entitlement to service connection for bilateral upper extremity neuropathy is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and major depressive disorder is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to an acquired psychiatric disorder, is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. Entitlement to service connection for left lower extremity neuropathy is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a diagnosis of bilateral upper extremity neuropathy and the record does not contain a recent diagnosis of such disability prior to the Veteran's filing of a claim. CONCLUSION OF LAW The criteria for service connection for bilateral upper extremity neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1982 to July 1983, September 27, 1989 to February 8, 1990, and from June 13, 1996 to August 2, 1996. These matters come to the Board of Veterans' Appeals (Board) from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's claims for service connection for a bilateral knee condition and bilateral hearing loss were previously denied in a January 2015 rating decision. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant 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. 38 C.F.R. § 3.156(c). Therefore, 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. In this case, the Veteran's service treatment records were received by VA sometime between the issuance of the January 2015 rating decision and the issuance of the October 2016 rating decision. As such, 38 C.F.R. § 3.156(c) applies and the claims are reconsidered. In his substantive appeal (VA Form 9), received in April 2017, the Veteran requested a Board hearing. The requested hearing was scheduled to occur in October 2021; however, the Veteran did not report to this scheduled hearing, has not requested that the hearing be rescheduled and has not provided good cause for his failure to appear. Thus, his hearing request has been considered to be withdrawn. See 38 C.F.R. § 20.702(d). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for upper extremities neuropathy is denied. The Veteran generally maintains that service connection is warranted for a nerve impairment of the upper extremities on the theory that he developed this problem as a result of his active service. Specific argument in support of this appeal has not been submitted. Service treatment records are negative for complaints, treatments or diagnoses related to upper extremity neuropathy. At the Veteran's separation examination in July 1983, clinical evaluation of the upper extremities was normal. Post-service treatment records are negative for complaints, treatments or diagnoses related to upper extremity neuropathy. The October 2016 VA peripheral nerves examination did not make any finding related to neuropathy of the upper extremities. Here, the Veteran does not have a current diagnosis of bilateral upper extremity neuropathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the record does not reflect a diagnosis related to his disability, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that service connection presupposes a current diagnosis of the condition claimed, to at least confirm the veteran has it; without this minimum level of proof, there can be no valid claim). No further discussion of the remaining elements is necessary. The Board acknowledges the Court of Appeals for Veterans Claims' (Court's) holding in Saunders but does not find a basis for determining that there is functional impairment related to a diagnosis of a bilateral upper extremity neuropathy. See Saunders v. Wilkie, 886 F.3d. 1356 (2018). Moreover, the Veteran has not alleged manifestations of similar severity, frequency and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020). In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. The Veteran generally contends that his upper extremity neuropathy is due to his service. As a lay person, the Veteran is competent to report observable symptoms such as pain in the extremities. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability"); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, while the Veteran is competent to report having experienced symptoms of a bilateral upper extremity neuropathy, he is not competent to opine on the etiology of the condition and/or to determine that these symptoms are somehow related to his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Board concludes that the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for his claimed bilateral upper extremity neuropathy. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. The specific bases for remand are set forth below. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran generally contends that he is entitled to service connection for bilateral hearing loss due to noise exposure during military service. The Veteran's October 2016 VA audiological evaluation reveals hearing loss for VA purposes under 38 C.F.R. § 3.385. An October 2016 VA examiner opined that it was less likely than not (50 percent probability or greater) that the Veteran's bilateral hearing loss was caused by or a result of an event in service as there were no shifts to hearing or complaints of hearing loss noted during service and that testing in 2014 indicates a mild hearing loss. In this regard, the examiner appears to have solely relied on the absence of in-service treatment as well as post-service treatment for several years as the rationale for the negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). Moreover, the opinions were provided without an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that an additional medical opinion is warranted to address the nature and etiology of his bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, including PTSD and major depressive disorder, is remanded. The Veteran indicated that, during his time at the Beirut International Airport in October 1983, his squad leader was killed by sniper fire in a June 2016 submission. The Veteran also reported that, a few days later, one of their officers was killed in a grenade attack. He stated that they were constantly attacked by sniper fire and grenades; he thought that he would be the next to die. Service personnel records indicate that the Veteran served in Lebanon from April 1983 to December 1983. On remand, the RO should seek information from any other federal records repository in an attempt to place the Veteran in Beirut in October 1983, and to obtain information pertaining to his unit assignments and any involvement with the reported incident in Beirut. Post-service treatment records reflect an assessment of PTSD and depressive disorder in March 2014 with the Veteran relating his conditions to the incident he experienced in Beirut. On remand, an etiological opinion should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran generally contends that his obstructive sleep apnea had its onset during service or is secondary to an acquired psychiatric disorder. Specific argument in support of this appeal has not been submitted. Post-service treatment records reflect a diagnosis of obstructive sleep apnea in October 2016 following a sleep study. A January 2020 statement from J.R., the Veteran's former wife, indicates that they were married while he was in service and that he experienced difficulty sleeping during that time. A September 2016 statement from Dr. S.T., a private physician, indicates that the Veteran complained of snoring, observed nocturnal gasping, nocturnal dyspnea and fragmented sleep. The physician noted that the fragmented sleep may be from obstructive sleep apnea coupled with PTSD-related nightmares, that obstructive sleep apnea may increase the severity of nightmares and that research shows veterans with PTSD and of health body weight are more inclined than the general public for having sleep disordered breathing (mechanism unknown). However, a specific etiology opinion was not provided. On remand, such an opinion should be obtained. See McLendon v. Nicholson, supra. 3. Entitlement to service connection for residuals of a TBI is remanded. The Veteran seeks service connection for residuals of a TBI, which he attributes to an explosion during service. In this regard, the Veteran indicates that he has suffered from symptoms of a TBI after a blast injury in Beirut in 1983. As stated above, the Veteran's military personnel records show that the Veteran had service in Lebanon from April 1983 through December 1983. Further, VA treatment reports, dated from February 2014 to November 2014, show that the Veteran received clinical attention and treatment for post-TBI headaches. In light of the Veteran's statements and contentions and the medical evidence of record, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present residuals of TBI. McLendon v. Nicholson, supra. 4. Entitlement to service connection for a lumbar spine disorder is remanded. 5. Entitlement to service connection for right lower extremity neuropathy is remanded. 6. Entitlement to service connection for left lower extremity neuropathy is remanded. The Veteran asserts that his lumbar spine disorder is due to an injury sustained as a result of a grenade explosion in Beirut in 1983 and a building collapsed on him. Post-service VA treatment records show a history of chronic low back pain. Significantly, the medical records reflect that the Veteran was seen at a clinic in February 2014 to establish care. At that time, the Veteran complained of low back pain ever since he was in an explosion in Beirut in 1983 and sustained a crush injury when a building collapsed on him. The Veteran indicated that he has had symptoms for the past 20 years. The assessment was low back pain. In light of the Veteran's statements and contentions and the medical evidence of record, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present lumbar spine disorder. McLendon v. Nicholson, supra. The issues of entitlement to service connection for left and right lower extremity neuropathy is intertwined with the issue of entitlement to service connection for a lumbar spine disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Therefore, the Board will defer adjudication on these issues. 5. Entitlement to service connection for a right knee disorder is remanded. 6. Entitlement to service connection for a left knee disorder is remanded. The Veteran contends that he is entitled to service connection for a bilateral knee disability related to his active service. Specifically, the Veteran indicates that he injured his knees as a result of an explosion in Beirut in 1983. He additionally notes that he fell on subsequent occasions due to tank crashes and parachute jumps. Service treatment records reflect intermittent complaints of right knee pain in January 1983 and an airborne training examination in June 1988 reflects an assessment of chronic left knee pain. An October 2016 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's bilateral knee disorder was incurred in or caused by the claimed in-service injury, event or illness as his current bilateral knee condition is degenerative in nature and not related to in-service knee pain as the evidence in the claims file indicates that in-service knee pain had resolved. However, this opinion was provided without an adequate rationale and appears to be based on the absence of in-service treatment as well as post-service treatment for several years as the rationale for the negative nexus opinion. See Nieves-Rodriguez v. Peake, supra; See Dalton v. Nicholson, supra. Therefore, the Board finds that an additional medical opinion is warranted to address the nature and etiology of his bilateral knee disorder. The matters are REMANDED for the following actions: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Attempt to corroborate the Veteran's in-service stressor, including the reported stressor of responding and participating in cleanup efforts in Beirut after the bombing of the Marine barracks in late October 1983. If more details are needed, contact the Veteran to request the information. 3. Following the receipt of outstanding records, the claims file, including a copy of this remand, should be sent to an appropriate examiner for opinion as to the nature and etiology of the Veteran's claimed bilateral hearing loss. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss its onset in service or is otherwise etiologically related to service, to include any acoustic trauma during service? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Following the receipt of outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for further physical examination, and if any such required examination must be conducted in person, is left to the discretion of the examiner. The examiner is asked to respond to the following questions: (A) Identify all current acquired psychiatric disorder(s) that have been present at any time since May 2016. If it is determined that PTSD has not been present during the period of the claim, the examiner should explain why the diagnosis is not warranted. The examiner is advised that the Veteran should be evaluated under the DSM-5 criteria. (B) With respect to any currently diagnosed PTSD, is it at least as likely as not (50 percent probability or greater) that such condition is related to a verified in-service stressor and/or fear of hostile military or terrorist activity? The examiner should address the Veteran's contention that his squad leader was killed by sniper fire at the Beirut International Airport in October 1983, that an officer was killed in a grenade attack a few days later and that he was subjected to sniper fire and grenade attacks. (C) For any diagnosed acquired psychiatric disorder(s) other than PTSD, is at least as likely as not (50 percent probability or greater) that each disorder was incurred in, was caused by, or is otherwise etiologically related to the Veteran's military service? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Following the receipt of outstanding records, the claims file, including a copy of this remand, should be sent to an appropriate examiner for opinion as to the nature and etiology of the Veteran's claimed obstructive sleep apnea. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) Is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea its onset in service or is otherwise etiologically related to service, to include any sleep difficulties during service? (B) Is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea was caused or aggravated by an acquired psychiatric disorder? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Following the receipt of outstanding records, the claims file, including a copy of this remand, should be sent to an appropriate examiner for opinion as to the nature and etiology of the Veteran's claimed residuals of a TBI. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's residuals of a TBI had its onset in service or is otherwise etiologically related to service, to include any head injury sustained during an explosion or building collapse? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 7. Following the receipt of outstanding records, the claims file, including a copy of this remand, should be sent to an appropriate examiner for opinion as to the nature and etiology of the Veteran's claimed lumbar spine and bilateral knee disorder. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) Is it at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine disorder had its onset in service or is otherwise etiologically related to service, to include any back injury incurred during the explosion in 1983? The examiner should consider and discuss the Veteran's assertion that he injured his back when a grenade exploded in service. (B) Is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral knee disorder had its onset in service or is otherwise etiologically related to service, to include? The examiner should consider and discuss the Veteran's assertion that he injured his knee during a building collapse during service and/or injured in tank crashes or parachute jumps. The examiner should also address the significance, if any, of the intermittent complaints of right knee pain in January 1983 and the assessment of chronic left knee pain in an airborne training examination in June 1988. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.