Citation Nr: 21009550 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-11 677 DATE: February 22, 2021 ORDER A rating in excess of 10 percent for tinnitus is denied. Service connection for chronic lymphocytic leukemia (CLL) is denied. Service connection for residuals of a myocardial infarction (claimed as secondary to obstructive sleep apnea) is denied. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for obstructive sleep apnea (OSA) (now claimed as secondary to service-connected PTSD) is remanded. Service connection for breathing problems (now claimed as COPD) is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected tinnitus is assigned the maximum schedular evaluation. 2. The preponderance of the evidence is against a finding that the Veteran’s CLL is due to service. 3. The preponderance of the evidence is against a finding that the Veteran’s residuals of a myocardial infarction are due to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 2. The criteria for service connection for CLL have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.302, 3.303. 3. The criteria for service connection for residuals of a myocardial infarction (claimed as secondary to OSA) have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1989 through November of 1989 and from December 1990 through July 1991. This matter is before the Board of Veterans Appeals (Board) on appeal from a July 2012 rating decision. This matter was remanded by the Board in June 2018 for further evidentiary development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Increased Ratings 1. A rating in excess of 10 percent for tinnitus Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Under 38 C.F.R. § 4.87, Diagnostic Code 6260, recurrent tinnitus warrants a maximum 10 percent rating. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260 limit a veteran to a single disability for tinnitus, regardless of whether the tinnitus is unilateral or bilateral). Factual Background & Analysis The Veteran has been granted service connection for tinnitus. A 10 percent disability rating has been assigned. In other words, his service-connected tinnitus disability has been assigned the maximum schedular rating available for the period on appeal. No higher schedular evaluation is warranted for tinnitus. The Board has sympathetically reviewed buddy/lay statements submitted by various family members of the Veteran documenting the severity of his tinnitus symptoms. The Veteran has constant ringing in his hears and sometimes cannot hear people speaking to him unless they are very close to him. When there is any kind of background noise, he has great difficulty hearing speech. His symptoms are worsened by people talking and laughing which makes it difficult to understand everything that is being said. See November 2013 buddy/lay statements. The Board is sympathetic to the Veteran. However, to the extent that VA’s current rating schedule is limited in the compensation it provides for tinnitus, neither the Board nor the Court of Appeals for Veterans Claims itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). Service Connection Legal Criteria Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disorder may also be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 2. Service connection for CLL Factual Background & Analysis The Veteran was diagnosed with CLL with residual fatigue, shortness of breath, splenomegaly and diffuse lymphadenopathy in 2010. May 2011 treatment records from the MD Anderson Cancer Center note that the Veteran continues to work full-time and remains active running several times a week. On May 2012 VA examination the Veteran was diagnosed with CLL. Regarding a causal nexus between this disability and his service, the examiner opined that it is less likely than not that this disability was incurred in service, to include due to exposure to depleted Uranium while serving in Kuwait. The examiner stated that they carefully reviewed the Veteran’s medical records and they were silent for breathing problems and fatigue. Further, the examiner explained that a preponderance of the medical literature does not support a causal relationship between CLL and exposure to depleted Uranium. In November 2020 the Veteran submitted a December 2015 report conducted by VA which documents the prevalence of certain diseases, including cancer, in Veterans that served during the Gulf War between 1990 and 1991. The Board has carefully reviewed the claims file and finds that the preponderance of the competent medical evidence weighs against the claim for service connection for CLL. The May 2012 VA examiner reviewed the Veteran’s treatment records and the medical literature and found no basis for finding a causal relationship between the Veteran’s CLL and his service. This opinion is entitled to considerable probative weight because it was rendered following an examination of the Veteran and after a review of his medical history. Further, an adequate rationale was provided which addressed the Veteran’s contentions. Additionally, there is no evidence that any relevant fact was misstated or improperly relied upon. Finally, there are no opinions of record which tend to contradict the available VA opinion. As such, the medical evidence weighs against nexus. In that regard, the Board has considered the submitted VA report regarding the prevalence of cancer in Gulf War veterans. The U.S. Court of Appeals for Veterans Claims (Court) has held that “generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive.” Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). Medical treatise evidence may indicate enough of a basis of a generic relationship to establish “a plausible causality based on objective facts.” Mattern, 12 Vet. App. at 228 (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). However, in this case, the opinion of a competent medical professional who is providing an opinion concerning a specific Veteran based on the evidence of record outweighs any general findings in medical literature. Although the Veteran believes that he developed CLL because of his service, to include due to exposure to depleted Uranium while serving during the Gulf War, and he is certainly competent to report as to the observable symptoms he experiences and their history, neither he or nor his representative are competent to provide a medical opinion in this case. The record does not reflect that either have the requisite training or expertise to offer a medical opinion linking a complex medical disability to a certain etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. In sum, the most probative and persuasive evidence is against a finding that the Veteran’s CLL was incurred in or caused by service and therefore the claim is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-56. 3. Service connection for residuals of a myocardial infarction (secondary to OSA) Factual Background & Analysis The Veteran contends that his residuals of a myocardial infarction are proximately due to or aggravated by OSA. Treatment records document a myocardial infarction in 2007. On May 2012 VA examination the Veteran was noted to have a past myocardial infarction with a coronary stent and no functional limitation or residuals. The examiner opined that this disability is not proximately due to or aggravated by claimed OSA. The examiner’s rationale was that a review of the medical literature does not show a nexus between OSA as a proximate cause of coronary artery disease. Further, recent studies were noted to have shown that mild or treated OSA does not significant increase cardiovascular risk profile. The examiner discussed further that the Veteran’s very mild dilation of the left ventricle shown on echocardiogram is clinically insignificant and not due to his heart disability. The Board has carefully reviewed the claims file and finds that the preponderance of the competent medical evidence weighs against the claim for service connection for a myocardial infarction secondary to OSA. Ultimately, the Board finds the opinion of the May 2012 VA examiner to be highly persuasive and probative. The examiners’ findings were based on a review of the evidence, including the service treatment records (STRs) and an in-person examination, which did not substantiate a finding that the Veteran’s residuals of a myocardial infarction are proximately due to or aggravated by OSA. The examiners considered the complete record and the Veteran’s contentions and provided an explanation as to why the evidence does not support a finding that any residuals of heart disability are proximately due to or aggravated by OSA. Critically, the VA examiner provided a reasoning that is supported by the record and medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the opinion is of significant probative value. Although the Veteran believes that he developed residuals of a myocardial infarction secondary to OSA, and he is certainly competent to report as to the observable symptoms he experiences and their history, neither he or nor his representative are competent to provide a medical opinion in this case. The record does not reflect that either have the requisite training or expertise to offer a medical opinion linking a complex medical disability to his service or another disability and therefore are not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. The Board notes that the Veteran’s claim for entitlement to service connection for OSA is remanded herein; however, as the Board finds that the Veteran’s residuals of a myocardial infarction are not related to the OSA, this claim is not inextricably intertwined with the remanded issue. In summary, the most probative and persuasive evidence is against a finding that any residuals of a myocardial infarction are related to his service or OSA. Rationale for any opinion expressed should be provided. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-56. REASONS FOR REMAND 4. Service connection for bilateral hearing loss It is conceded that the Veteran was exposed to acoustic trauma during service and he is service connected for tinnitus. The July 2012 VA examiner found that the Veteran had hearing loss for VA purposes, but also rendered a negative nexus opinion based solely on the lack of a threshold shift in service. Such opinion is inadequate as the lack of an in-service threshold shift is not fatal to a service connection claim for hearing loss. See generally Hensley v. Brown, 5 Vet. App. 155 (1993); 38 C.F.R. § 3.303 (d). The examiner also did not specifically discuss the role, if any, the Veteran’s in-service noise exposure played in the development of his hearing loss. As such, the claim must be remanded. 5. Service connection for OSA (now claimed as secondary to service-connected PTSD) In his November 2020 submissions, the Veteran raised the contention that his OSA may be proximately due to or aggravated by) his service-connected PTSD and cited to medical articles suggesting a correlation between these disabilities. A VA opinion is warranted to address this secondary service connection theory of entitlement. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008). 6. Service connection for breathing problems (now claimed as COPD) The Veteran was last examined with respect to any respiratory disabilities in May 2012. At that time, the Veteran was not diagnosed with disabilities but rather his symptoms of shortness of breath and fatigue were noted to be symptoms of his CLL. Since that time, the Veteran has been diagnosed with COPD and contends that this disability may be related to exposure to burn pits, chemicals and extreme dust while serving during the Gulf War. The Veteran further communicated that he has struggled with shortness of breath and has not been able to breath properly since returning from his deployment. The Board finds that a new VA examination is warranted to address the nature and cause of his subsequent COPD diagnosis to include consideration of exposure to various inhalants during service. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records. 2. Obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s bilateral hearing loss. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. If and only if the reviewing clinician determines a new examination is necessary to provide an adequate opinion should one be scheduled. After the record review (and examination of the Veteran, if deemed necessary), the reviewing clinician is asked to provide an opinion regarding whether it is at least as likely as not that the Veteran’s bilateral hearing loss was incurred in, or is otherwise related to active service, to include conceded noise exposure therein. For the purposes of this opinion, the reviewing clinician is to assume and accept as true that the Veteran was exposed to excessive noise in service. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history and should be considered credible for the purpose of the opinion requested herein only. Rationale for any opinion expressed should be provided. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided. 3. Obtain a VA addendum opinion (and a new examination if deemed necessary) to determine whether the Veteran’s sleep apnea is at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected PTSD. If and only if the reviewing clinician determines a new examination is necessary to provide an adequate opinion should one be scheduled. In addressing secondary service connection, the examiner must provide separate opinions for causation and aggravation. Please noted that a recent precedential decision by the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019), held aggravation under 38 C.F.R. § 3.310 (b) does not require that there be “permanent” worsening of the nonservice connected disability. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history and should be considered credible for the purpose of the opinion requested herein only. Rationale for any opinion expressed should be provided. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided. 4. Obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s respiratory condition. If and only if the reviewing clinician determines a new examination is necessary to provide an adequate opinion should one be scheduled. The examiner should address the following: For any diagnosed respiratory disabilities (e.g. COPD), provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such condition had its onset during service or is otherwise related to service, to include due to exposure to inhalants such as burn piles, chemicals and dust during the Gulf War. (Continued on the next page)   In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history and should be considered credible for the purpose of the opinion requested herein only. Rationale for any opinion expressed should be provided. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.