Citation Nr: 21077508 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-05 412 DATE: December 30, 2021 ORDER 1. Entitlement to service connection for left ear hearing loss is denied. REMANDED 2. Entitlement to service connection for a right elbow disability is remanded. 3. Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT The Veteran does not have a current left ear hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1983 to September 1983, and from May 1986 to June 2001. This case is before the Board of Veterans' Appeals (Board) on appeal from November 2011 and January 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In those rating decisions, the RO denied entitlement to service connection for a right elbow disability and for a left ear hearing loss disability, and confirmed and continued the prior denial of the obstructive sleep apnea service connection claim. The Veteran's notice of disagreement (NOD) was received in August 2012. The RO issued statements of the case (SOCs) addressing each issue in November 2015, and the Veteran's VA Form 9, substantive appeal was received in January 2016. In November 2018, the Board remanded the case for further development and adjudicative action. In April 2021, the Board granted the petition to reopen the previously denied claim of service connection for obstructive sleep apnea, and remanded the service connection claims for obstructive sleep apnea, a right elbow disability, and a left ear hearing loss disability. The Board also remanded a separate claim of service connection for a right thumb disability; however, the RO granted the claim for service connection for a right thumb disability in a July 2021 rating decision, and such decision constitutes a full grant of the benefits sought on appeal. As so, that issue is not before the Board and is not addressed herein. SERVICE CONNECTION, GENERALLY Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Furthermore, pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). 1. Entitlement to service connection for a left ear hearing loss disability The Veteran contends that he is entitled to service connection for a left ear hearing loss disability. Specifically, he contends that he has hearing loss in the left ear that is the result of hazardous noise exposure during service. See, e.g. May 2021 VA hearing loss Disability Benefits Questionnaire (DBQ). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. Service Treatment Records (STRs) include the results of audiograms conducted in May 1984, April 1986, June 1987, March 1999, November 2000, and January 2001. Hearing was within normal limits at each examination. A July 2009 private physician's letter indicates that the Veteran has "about a 10 to 15 disability hearing loss . . . ." The private physician opined that the Veteran's hearing loss was as likely as not related to in-service noise exposure. Speech discrimination was 100 percent in the left ear. Audiometric testing, conducted in June 2009, revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 LEFT 10-15 10-15 10-15 10-15 10 The Veteran had a VA hearing loss examination in May 2010. Speech discrimination testing, using the Maryland CNC test, was 100 percent in the left ear. Audiometric testing revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 LEFT 15 15 25 25 25 The Veteran had another VA hearing loss examination in May 2021. Speech discrimination testing, using the Maryland CNC test, was 94 percent in the left ear. Audiometric testing revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 LEFT 20 25 25 30 35 Based on this evidence, the Veteran does not have a current left ear hearing loss disability for VA purposes. Specifically, the evidence shows that, during the appeal period, the Veteran's auditory thresholds were not 40 dB or greater at any frequency between 500 and 4,000 Hertz; auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz were not 26 decibels or greater; and speech recognition scores using the Maryland CNC test were not less than 94 percent. As the Veteran does not have a left ear hearing loss disability for VA purposes, the first element of the service connection claim is not met. As the first element of the service connection claim is not met, the service connection claim fails, and no further discussion of the other elements of the service connection claim is necessary. The appeal is denied. REASONS FOR REMAND 2. Entitlement to service connection for a right elbow disability The Veteran contends that he is entitled to service connection for a right elbow disability, which he contends is related to service. Specifically, he reported that he injured his right elbow in 1989 when he fell into a bomb crater/ditch. See, e.g. June 2016 VA Hand and Finger examination Disability Benefits Questionnaire (DBQ), p. 3. Additionally, the Service Treatment Records (STRs) show that the Veteran hurt his right arm playing football in December 1992. STRs show that the Veteran was treated for right arm pain on numerous occasions. STRs from July 1989 show that the Veteran was treated for pain in the upper back, and running down the right arm, after he "fell in a ditch." STRs from September 1991 show that the Veteran was treated for a right hand injury. An August 1992 STR shows complaint of a right arm bruise, and the Veteran was assessed with a right arm muscle contusion. A December 1992 STR shows that the Veteran injured his right arm while playing football. The elbow began to hurt "after the game," and there was still pain upon full extension of the elbow approximately one week later. Examination revealed pain on palpation just distal to the medial epicondyle. The Veteran had decreased range of motion in the right elbow, and was assessed with right elbow tendonitis. STRs from April 1995 show that the Veteran was seen for recurrent interscapular pain. He reported "some radiation" to the upper right arm. A January 2001 Report of Medical History shows that the Veteran endorsed impaired use of the arms, reporting "pain in elbow between 1993-1995." Post-service medical records also show numerous complaints of right elbow pain. In a March 2002 Statement in Support of Claim, the Veteran reported pain in the right elbow. A March 2002 VA orthopedic surgery note shows complaint of "bilateral lateral elbow pain." An April 2007 VA pain consult note shows complaint of thoracic pain, radiating laterally to the right arm. An April 2009 VA nursing note shows complain of pain to the bilateral elbows. An August 2010 VA primary care note shows complaint of joint pain in the right elbow with active as well as passive motion. The Veteran underwent a VA examination of the right elbow in May 2010. He reported that he injured the elbow in 1992, when he had an impact injury of the right elbow playing football. The course since onset was stable, with symptoms including pain and stiffness. The examiner diagnosed "gouty arthralgias [right] elbow without significant degenerative change." X-rays of the elbow were negative, with no radiologic evidence of degenerative joint disease. The May 2010 examiner opined that degenerative joint disease of the right elbow was not caused by or the result of an in-service injury, because "there is no clinical or radiologic evidence to support a diagnosis of [degenerative joint disease] of the right elbow." In July 2010 correspondence, the Veteran reported that his right elbow pain is chronic, and has continued since it was injured in service. An August 2010 VA primary care note shows assessment of joint pain in the right elbow. A September 2010 private treatment note shows that the Veteran was assessed with lateral epicondylitis ("tennis elbow") in September 2010. See, e.g. March 2013 VA physician's note. The Veteran had a VA right elbow examination in October 2019. The examiner diagnosed right elbow triceps tendinitis with a diagnosis date of 2019. The examiner noted: Veteran denies any history of surgeries or invasive procedures on his elbows. He reports chronic bilateral elbow pain for several years. He gets pain in his posterior elbow around the triceps tendon that will periodically bother him with increased activity. He thinks he had bruised his elbow back in approximately 1998 while on active duty. He states the more recently he's been diagnosed with a right biceps tendon tear that occurred about six months ago. He doesn't report any ADL limitations related to his elbows. The examiner reviewed the STRs and conducted range of motion testing. The examiner opined that it is less likely than not that the Veteran had a right elbow diagnosis that was incurred in or caused by service. The rationale was as follows: Cited records were reviewed. The 1992 right elbow condition cited described a medial elbow pain distal to the medial epicondyle. Veteran had reported an elbow history on his exit physical but didn't describe current elbow problems. On exam at present, veteran's right elbow condition is more consistent with a triceps tendonitis. There was no evidence to support a chronic right elbow condition in the strs or a nexus between the 1992 medial epicondylitis and his presently claimed elbow condition, an interval of 27 years. Veteran's claimed right elbow condition is not at least as likely as not related to service. The Veteran underwent another VA elbow examination in May 2021. X-rays revealed a normal right elbow with no evidence of fracture, dislocation, other focal osseous, soft tissue, or joint abnormality. There was no evidence of elbow joint effusion. An x-ray procedure note indicates complaint of right elbow pain and stiffness. The examiner noted a sole diagnosis of triceps tendinitis, with a diagnosis date of 2019. The examiner obtained the Veteran's own history of the disability, and reviewed the October 2019 DBQ. The examiner noted pain with extension of the arm, when raising the arm above the head, and when writing for a long time. The examiner specifically attributed the painful motion to triceps tendinitis. Then, the examiner opined as follows: The Veteran's claim of right elbow current disability is not caused by an in-service condition. Triceps tendonitis was first diagnosed in 2019 [at the October 2019 VA examination] and today's exam is consistent with triceps tendonitis. His in-service exam does not support ongoing chronic triceps tendonitis. Therefore triceps tendonitis is NOT at least as likely as not incurred during service. [sic] Simply put, the May 2021 opinion is inadequate. The examiner's rationale is based solely on the fact that the Veteran's STRs do not show triceps tendonitis in service. The opinion does not consider the medical evidence showing various elbow disabilities prior to 2019, nor does the opinion address the Veteran's competent lay reports indicating that his right elbow pain and stiffness began in-service, and that he has had chronic elbow pain for many years since then. Moreover, the examiner stated, based solely on the findings of the October 2019 VA examiner, that the Veteran's diagnosis of triceps tendonitis began in 2019. The examiner also attributed painful motion and stiffness to the triceps tendonitis. Yet, the Veteran reported that those symptoms began during service, and the record contains ample medical evidence showing complaints of right elbow pain and stiffness significantly earlier than 2019. In essence, the examiner's opinion that the Veteran's right elbow disability (triceps tendonitis) was less likely than not incurred in or caused by service, since it began in 2019, is inherently inconsistent with his own findings that pain and stiffness are attributable to triceps tendonitis, since the record contains substantial medical and lay evidence suggesting that such symptoms began significantly earlier than 2019 and potentially as early as the Veteran's term of active service. Accordingly, a clarifying opinion must be obtained before the claim can be adjudicated. 3. Entitlement to service connection for obstructive sleep apnea The Veteran contends that he has obstructive sleep apnea that is related to service. Specifically, he contends that his obstructive sleep apnea is secondary to a service-connected disabilityprecisely, that his obstructive sleep apnea is related to obesity, which is itself the result of a service-connected disability, to include his numerous service-connected lower extremity orthopedic-related disabilities and/or service-connected posttraumatic stress disorder (PTSD). See, e.g. September 2006 Statement in Support of Claim (asserting that "obesity and resulting obstructive sleep apnea are directly related and a result of inability to exercise beyond normal walking" as a result of service-connected back and associated lower extremity disabilities); see also July 2010 Correspondence (describing the claim as one for "sleep apnea resultant from and secondary to metabolic syndrome (obesity).") Obesity is not a disease or disability for VA purposes, and is thus not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). However, VAOPGCPREC 1-2017 recognizes that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). In order to meet this criterion, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). STRs are silent for complaints, treatment, or diagnosis of sleep apnea. The Veteran's wife noted apneic events during the Veteran's sleep as early as October 2003. See October 2003 VA otolaryngology note. A February 2004 VA sleep medicine note indicates breathing problems while sleeping. The Veteran was diagnosed with obstructive sleep apnea in July 2004. See private family medicine note dated July 2004. An August 2004 private polysomnogram interpretation letter reflects a diagnosis of moderate obstructive sleep apnea, with recommendation to lose weight. The Veteran was cautioned concerning use of "CNS depressants (ETOH and sedative-hypnotics)," which may exacerbate snoring and sleep-related breathing problems. A January 2007 mental health note shows that the Veteran reported he "used to eat a lot [because] of depression," and has nightmares every night. A July 2007 VA sleep center note shows that the Veteran continued to use a continuous positive airway pressure (CPAP) machine, and was "recommended [to see a] sleep psychologist/therapist." A September 2007 VA primary care note shows that the Veteran was encouraged to continue using his CPAP machine and to lose weight. A May 2010 VA mental disorders examination report shows that the Veteran's (now) service-connected PTSD caused symptoms including increased appetite and "change of weight." The Veteran had a VA sleep apnea examination in May 2021. The examiner noted a diagnosis of obstructive sleep apnea, and indicated a date of onset of 1995 based on the Veteran's wife report that "since they started sleeping together in 1995 [] he stops breathing and loudly snores during sleep. [The Veteran] said it was brought to light in 2004 because he was getting depressed and overweighed." The examiner noted current symptoms, attributable to obstructive sleep apnea, to include snoring, holding breath while asleep, waking up gasping for air, difficulty awaking in the morning, and falling asleep in waiting rooms. As noted above, the claim was remanded in April 2021. In that remand, the Board identified which opinions were needed. Specifically, the remand directed that the RO obtain opinions addressing the following: (a) Is it at least as likely as not (i.e., a 50percent probability or greater) that the Veteran's diagnosed psychiatric disability and/or a service-connected orthopedic disability resulting in limited mobility, caused him to become obese? If so, (b) is it at least as likely as not that the Veteran's obesity was a substantial factor in his development of sleep apnea? If so, (c) is it at least as likely as not that the Veteran's sleep apnea may not have occurred but for the obesity? Further, the examiner was directed to consider the medical evidence concerning whether increased appetite and weight gain were attributable to the Veteran's service-connected PTSD or orthopedic disabilities. The examiner opined that the obstructive sleep apnea was less likely than not incurred in or caused by service. The examiner was also asked to opine as to whether it was as likely as not that the Veteran's service-connected PTSD and/or orthopedic disabilities "resulted in limited mobility [and] caused him to become obese." The examiner's exact response was "There is no pathological connection between the claimed orthopedic condition and obesity." This opinion is inadequate for purposes of adjudicating whether the Veteran's obstructive sleep apnea is related to service, based on obesity as an "intermediate step" in a causal chain so as to establish service connection on either a causal or aggravation basis. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). Specifically, because the opinion (i) does not address the PTSD, and (ii) the examiner did not provide an adequate rationale to support the finding concerning a link between service-connected orthopedic conditions and obesity, to include whether these conditions caused or aggravated the Veteran's obesity. Remand is necessary to obtain such an opinion. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an orthopedist, if possible, to determine the nature and etiology of all right elbow disabilities. The examiner should identify each right elbow disability, and for each disability, opine as to whether it is at least as likely as not (i.e. a 50 percent likelihood or greater) that such disability is related to service. In so opining, the examiner must consider the Veteran's lay statements, as well as the STRs and post-service medical records, which reflect consistent complaints of pain and/or stiffness in the right elbow, to include as early as 1992. The opinion should address whether any current right elbow disability is related to the Veteran's in-service right elbow injury, as well as the post-service treatment records showing numerous complaints of elbow pain prior to October 2019 (i.e. the date that triceps tendonitis was first diagnosed). Importantly, by remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's obstructive sleep apnea. The examiner should answer the following questions: (a.) is it at least as likely as not that the Veteran's service-connected disabilities, to include PTSD and/or orthopedic disabilities, caused the Veteran to become obese, or aggravated his obesity? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts, medical principles, and/or medical literature the opinion is based. (b.) If the obesity was caused or aggravated by a service-connected disability, to include PTSD and/or orthopedic disabilities, is it at least as likely as not that the obesity was a substantial factor in causing the obstructive sleep apnea? NOTE: It is not necessary that the service-connected disability be either the "sole" cause or even the "predominant cause" to satisfy the "substantial factor" test. Moreover, a "substantial factor" is one which is not defined quantitatively. (c.) If the obesity was a substantial factor in causing the obstructive sleep apnea, is it at least as likely as not that the obesity (either as caused or aggravated by a service-connected disability) was the but-for cause of the obstructive sleep apnea? Stated in another way, the examiner should opine whether it at least as likely as not (50 percent probability or greater) that the obstructive sleep apnea would not have occurred but for obesity caused or aggravated by the service-connected disabilities, to include PTSD and/or orthopedic disabilities. In so opining, the examiner should consider the lay statements, made by the Veteran and his wife, concerning onset and course of his obstructive sleep apnea. Importantly, by remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. A. HODZIC Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.