Citation Nr: 21076923 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-00 019A DATE: December 28, 2021 ORDER The claim of entitlement to service connection for sleep apnea is granted. The claim of entitlement to a 10 percent disability rating for tremors is granted, subject to the criteria applicable to the payment of monetary benefits. REMANDED The claim of entitlement to service connection for an intestinal disorder is remanded. The claim of entitlement to service connection for right ear hearing loss is remanded. Entitlement to an initial compensable rating for left ear hearing loss is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 30, 2018, is remanded. FINDINGS OF FACT 1. The Veteran's sleep apnea began during active service. 2. Throughout the period on appeal, the Veteran's hand tremors resulted in moderate disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating of 10 percent for tremors have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8199-8103 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Navy from February 2000 to September 2004. In November 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In Brokowski v. Shinseki, 23 Vet. App. 79 (2009), the Court extended the holding of Clemons to include disabilities outside of psychiatric disorders. In compliance with this case law, the Board considers the Veteran's claim of entitlement to service connection for irritable bowel syndrome as one that encompasses any intestinal disorder. In November 2019, the Veteran filed a claim for a TDIU and asserted that he was unable to work since 2007. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In December 2020, the AOJ granted entitlement to a TDIU, effective November 8, 2019. In December 2021, the AOJ granted an earlier effective date of April 30, 2018, for the grant of TDIU. In light of the record, the Board has recharacterized the issue on appeal as entitlement to a TDIU prior to April 30, 2018. The AOJ granted service connection for PTSD in a July 2019 rating decision, which satisfied the legacy appeal as to this issue. In his June 2020 VA Form 10182, the Veteran appealed the effective date and rating assigned in the July 2019 rating decision. The issues of an earlier effective date and an increased rating for PTSD were properly appealed to the Board under the AMA. Therefore, the issues will be addressed in a separate AMA decision by the Board. 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, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease, injury, or event and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, which is considered an organic disease of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 1. Entitlement to service connection for obstructive sleep apnea. The Veteran asserts that he developed sleep apnea during active service. An August 2018 VA treatment record included a diagnosis of moderate obstructive sleep apnea. Thus, the first element of service connection is met. A review of the service treatment records did not reveal any complaints or treatment related to sleep apnea. However, there is evidence that the Veteran's sleep apnea began during service. At the November 2020 Board hearing, the Veteran testified that his sleep apnea symptoms started during service and continued since. He described frequent tardiness during service due to being unconscious and extremely exhausted from not sleeping. He stated that his snoring started after he joined service. The Veteran's wife also provided testimony of the Veteran's sleep apnea symptoms. The Veteran was afforded a VA examination in November 2020. He reported that his symptoms of snoring, tiredness, and exhaustion started during service. He explained that he would wake up tired and often slept through his alarm. The examiner addressed the Veteran's contention that his sleep apnea was secondary to his PTSD. The examiner provided an opinion against the claim but did not address whether the Veteran's sleep apnea was directly related to service. The Veteran is competent to report sleep apnea symptoms in service and continuous symptoms in the years since service and his wife is competent to report her observations of the Veteran's symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for sleep apnea is warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. 2. Entitlement to an initial compensable rating for tremors. In the September 2017 rating decision on appeal, the AOJ granted service connection for tremors and assigned a noncompensable rating. As relevant to this case, when determining the rating for disabilities that were aggravated by service, the rating will be reflective on the degree of which in-service aggravation occurred over the pre-existing state of the disability. See 38 C.F.R. § 4.22. As discussed in the September 2017 rating decision, service connection was granted on an aggravation basis, and the evidence indicated that the preservice percentage is zero. A November 2001 service treatment record indicated that the Veteran had a history of slight tremors. On his August 2004 report of medical history, the Veteran stated that he had tumors since the age of 10, which gradually worsened over the last few months. Accordingly, the assignment of a noncompensable baseline disability level was proper and no deduction will be made. The Veteran's tremors are rated pursuant to Diagnostic Code 8199-8103 for convulsive tics. 38 C.F.R. § 4.124a, Diagnostic Code, 8103. Under Diagnostic Code 8103, mild impairment warrants a noncompensable rating. Moderate impairment warrants a 10 percent rating. And severe impairment warrants a 30 percent rating. The words "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran's tremors resulted in moderate impairment. The September 2017 VA examination report indicated that the Veteran frequently dropped objects due to his hands shaking. He treated his symptoms with Inderal with little to no improvement. The examiner found that the Veteran was limited in fine hand manipulation. During the November 2020 Board hearing, the Veteran stated that he shook constantly, especially when under stress. He provided details about his challenges with driving, holding a phone, typing, gripping, pressing buttons, drinking coffee, writing, and turning the page of a book. The Veteran spilled a cup of coffee during the hearing. Accordingly, a 10 percent rating is warranted for the Veteran's service-connected tremors. However, the Board finds that the Veterans tremors did not result in severe impairment. The September 2017 VA examination report showed that the Veteran had normal speech, normal gait, normal strength, normal deep tendon reflexes, no muscle atrophy, and no muscle weakness. The examiner stated that the Veteran could perform general activities without significant restrictions. At the Board hearing, the Veteran indicated that he had increased hand strength and that he trained to increase the strength in his hands. Accordingly, the Board concludes that a disability rating of 10 percent, and no higher, is warranted for the Veteran's tremors. REASONS FOR REMAND 1. The claim of entitlement to service connection for an intestinal disorder is remanded. Service treatment records showed that the Veteran was treated for enteritis in May 2003. In September 2017, the Veteran was afforded a VA examination. The Veteran attributed his symptoms and constipation to stress and stated that the symptoms preceded events. The examiner diagnosed irritable bowel syndrome and opined that the disorder was less likely than not related to service. The rationale was that the Veteran was treated for enteritis during service. The examiner also noted that an intestinal disorder was not noted at the time of the Veteran's separation from service. The Veteran submitted a private psychological evaluation. The examiner stated that research and studies linked IBS to trauma and stress. At the November 2020 Board hearing, the Veteran testified that his intestinal symptoms appeared when he was stressed. He explained that his intestinal symptoms appeared a week prior to events and that the next day the symptoms would subside. The Board finds that the September 2017 VA medical opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Specifically, the examiner acknowledged the Veteran's in-service treatment for enteritis, but did not address whether his currently diagnosed intestinal disorder is related to such in-service treatment. In addition, subsequent to the September 2017 VA examination, the AOJ granted service connection for PTSD. The evidence of record suggests that the Veteran's intestinal disorder is related to his service-connected PTSD. Accordingly, a remand is required to obtain another VA medical opinion. 2. The claim of entitlement to service connection for right ear hearing loss is remanded. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran initially underwent a VA examination in connection with his claim of entitlement to service connection for bilateral hearing loss in April 2017. Speech discrimination scores and pure tone thresholds, in decibels (dB), were as follows: Sept. 2017 HERTZ 500 1000 2000 3000 4000 CNC RIGHT 35 35 35 30 25 68 % The September 2017 VA examination report contains a diagnosis of right ear hearing loss in conformity with VA disability standards. See 38 C.F.R. § 3.385. Therefore, Board finds the evidence establishes a current disability of right ear hearing loss. The Veteran is service connected for left ear hearing loss related to in-service acoustic trauma. As such. in-service acoustic trauma is conceded. The Veteran's service treatment records are silent regarding complaints of or treatment for right ear hearing loss. The Veteran's enlistment physical examination in January 2000 reflected pure tone thresholds, in decibels, as follows: Jan. 2000 HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 5 15 5 5 10 A February 2000 audiogram reflected pure tone thresholds, in decibels, as follows: Feb. 2000 HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 15 20 10 5 5 A December 2002 audiogram reflected pure tone thresholds, in decibels, as follows: Dec. 2002 HERTZ 500 1000 2000 3000 4000 6000 RIGHT 20 10 20 10 15 20 A significant threshold shift was noted and another audiogram was completed in December 2002. Dec. 2002 HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 15 25 15 10 20 The Veteran's separation physical examination in August 2004 reflected pure tone thresholds, in decibels, as follows: Aug. 2004 HERTZ 500 1000 2000 3000 4000 6000 RIGHT 20 10 20 5 10 15 The September 2017 VA examiner opined that the Veteran's right ear hearing loss was less likely than not incurred in or caused by service. The rationale was that there was no significant threshold shift noted on the exit examination. The Board finds that the September 2017 VA medical opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Unfortunately, the VA examiner did not consider and discuss the significant threshold shift noted at 6000 Hz in the right ear when comparing the February 2000 audiogram and the December 2002 audiograms. The examiner also did not discuss the relevance of the other upward threshold shifts at multiple relevant frequencies during the Veteran's active service. Accordingly, a remand is required to obtain another medical opinion. 3. Entitlement to an initial compensable rating for left ear hearing loss is remanded. The issue of entitlement to an initial compensable rating for left ear hearing loss is intertwined with the claim of entitlement to service connection for right hearing loss. Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Specifically, a grant of service connection for right ear hearing loss could impact the rating assigned for the Veteran's hearing loss. Therefore, further consideration of the claim of entitlement to an increased rating for left ear hearing loss must be deferred. 4. Entitlement to a TDIU prior to April 30, 2018. The issue of entitlement to a TDIU is intertwined with the issues remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Therefore, further consideration of the claim of entitlement to a TDIU prior to April 30, 2018, must be deferred. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If the AOJ deems the records do not exist or that any additional attempts to obtain these records would be futile, the record should be annotated to reflect such and the Veteran should be notified in accordance with 38 C.F.R. § § § 3.159 (e). 2. Thereafter, the AOJ should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's intestinal disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The examiner must identify all intestinal disorders present during the period of the claim. Following an examination of the Veteran, and a thorough review of the record, the appropriate physician is requested to provide an opinion as to the following: (a) With respect to each intestinal disorder present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is etiologically related to the Veteran's active service, to include any symptomatology therein. (b) With respect to each intestinal disorder present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is caused or aggravated by the Veteran's service-connected PTSD. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 3. Then, the AOJ should obtain an addendum medical opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's right ear hearing loss. All pertinent evidence of record must be made available to and reviewed by the examiner. Following a review of the relevant records and lay statements, the appropriate clinician is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is etiologically related to the Veteran's active service. In so opining, the examiner must consider and discuss the upward threshold shifts documented during the Veteran's active service. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. (Continued on the next page) 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. N. McKinley, 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.