Citation Nr: 21022500 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-05 412 DATE: April 16, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for tinnitus is granted. Entitlement to an initial compensable disability rating for allergic rhinitis is denied. An initial increased disability rating of 70 percent, but no higher, for the service-connected posttraumatic stress disorder (PTSD) with an adjustment disorder, mixed anxiety, and a depressed mood is granted throughout the entirety of the appeal period. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a right thumb disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. An unappealed November 2007 decision denied service connection for obstructive sleep apnea; new and material evidence was not received within one year of that decision. 2. Additional evidence received since the November 2007 rating decision relates to previously unestablished facts necessary to substantiate the service connection claim for OSA. 3. Tinnitus is at least as likely as not etiologically related to the Veteran’s hazardous military noise exposure. 4. The Veteran’s service-connected allergic rhinitis has not been found to result in any nasal blockage and has not been manifested by polyps at any point during the appeal period. 5. Resolving reasonable doubt in the Veteran’s favor, the symptoms associated with his service-connected psychiatric disorder have more nearly approximated occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, but his symptoms have not resulted in total occupational or social impairment, but not higher, throughout the entirety of the appeal period. CONCLUSIONS OF LAW 1. The November 2007 rating decision that denied service connection for OSA is final. 38 U.S.C. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. The criteria to reopen the service connection claim for OSA have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for an initial compensable disability rating for the service-connected allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522. 5. The criteria for an initial 70 percent rating, but no higher, for the service-connected PTSD with an adjustment disorder, mixed anxiety, and a depressed mood have been met throughout the entirety of the appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1983 to September 1983 and from May 1986 to June 2001. This current appeal before the Board of Veterans’ Appeals (Board) arose from July 2010, November 2011, and January 2012 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2010 decision, the RO, inter alia, granted service connection for depression, assigning a 30 percent disability rating, effective January 12, 2010. In the November 2011 rating decision, the RO, inter alia, granted service connection for allergic rhinitis, assigning a noncompensable disability rating, effective October 14, 2010; recharacterized the service-connected depression as depression with PTSD, and continued the 30 percent rating; and denied service connection for left ear hearing loss, tinnitus, and a right elbow disability. In the January 2012 rating decision, the RO, inter alia, confirmed and continued the prior denial of the service connection claim for obstructive sleep apnea, and denied service connection for a right thumb disability. During the pendency of the Veteran’s appeal, in a November 2015 rating decision, the Agency of Original Jurisdiction (AOJ) increased the disability rating for depression with PTSD to 50 percent, still effective January 12, 2010. In an August 2020 rating decision, the AOJ recharacterized the service-connected psychiatric disorder as PTSD with adjustment disorder, mixed anxiety, and depressed mood, and increased the disability rating to 70 percent, effective November 7, 2019. In November 2018, the Board remanded the current claims on appeal to the AOJ for further evidentiary development. While the Board also remanded other service connection claims, those claims were granted in the August 2020 rating decision. New and Material Evidence – Obstructive Sleep Apnea Generally, a final decision issued by the AOJ may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105(c), (d). The exception to this rule is found at 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is existing evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The Veteran’s original service connection claim for OSA was denied in November 2007 on the basis that the Veteran’s service treatment records (STRs) did not show a disease or injury while on active duty, and the evidence did not show a current chronic condition as a result of in-service disease or injury. The Veteran was notified of the decision and his appellate rights, in a January 2008 letter, but he did not initiate an appeal. See 38 C.F.R. §§ 19.20, 19.21. There is no indication that new and material evidence pertinent to the claim was received within one year following the decision, or that additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Thus, the November 2007 decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Evidence of record at that time of the November 2007 rating decision included the Veteran’s STRs, which did not reflect any complaints or treatment for symptoms indicative of OSA during service; VA clinical treatment reports dated through November 2007, which reflect OSA treatment with a CPAP device; and private treatment records noting the sleep apnea diagnosis. New evidence pertinent to the claim includes the Veteran’s January 2010 Application for Compensation, wherein he clearly outlines his contention that his sleep apnea resulted from metabolic syndrome (obesity) caused by his service-connected disabilities; multiple private and VA clinical treatment reports reflecting ongoing treatment for OSA; and a May 2010 VA mental disorder examination report, indicating that the Veteran had experienced increased appetite and change of weight associated with his service-connected psychiatric disorder. Given the “low threshold” standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the November 2007 rating decision is new and material within the meaning of 38 C.F.R. § 3.156(a), as it provides evidence of ongoing treatment for sleep apnea, contains the Veteran’s clear contentions that his sleep apnea resulted from metabolic syndrome, and contains evidence that the Veteran experienced increased appetite and weight change associated with his service-connected psychiatric disorder. Thus, the new evidence suggests a basis for awarding service connection pursuant to an alternative theory of entitlement that was not previously considered by the AOJ. Under these circumstances, the Board concludes that the criteria for reopening the service connection claim for OSA are met. Service Connection – Tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury, event, or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The determination as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. Considering the pertinent evidence of record in light of the governing legal authority, and resolving all reasonable doubt in the Veteran’s favor on certain elements of the claim, the Board finds that service connection for tinnitus, as a result of hazardous military noise exposure, is warranted. Initially, the Board notes that the medical evidence, including a May 2010 VA examination report, and multiple private treatment reports note the Veteran’s report of left ear tinnitus. The Board finds that this evidence is sufficient to support a finding that the Veteran had a current tinnitus disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (providing that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when... a layperson is competent to identify the medical condition....”); Charles v. Principi, 16 Vet. App. 370 (2002) (stating that “ringing in the ears is capable of lay observation and, as such, a veteran is competent to testify as to that symptom”). As to in-service noise exposure, the Veteran’s DD Form 214 from his first period of service documented his military occupational specialty (MOS) as a light air defense artillery crewman, and his qualifications as a marksman, and hand grenade expert. Additionally, his STRs contain November 2000 and January 2001 reference audiogram reports noting his routine exposure to hazardous noise levels. Further, a July 2009 private clinical treatment report documented the Veteran as having been exposed to artillery cannons, tank main guns, and machine gun fire on a regular daily basis during service, and that he was also exposed to extended durations of noise from heavy military vehicles and diesel trucks. The report indicated that during periods of exposure, there was no available ear protection. Based on the foregoing, the Board finds that the evidence clearly indicates that the Veteran endured hazardous military noise exposure during service. With respect to the question of etiology, in a July 2009 letter, the Veteran’s private physician noted his history of exposure to hazardous noise during service and the lack of available hearing protection. The physician also noted the Veteran’s subsequent development of tinnitus, and provided the opinion that the Veteran’s tinnitus was probably directly related to his noise exposure during service, and was likely to progress at an earlier age than the average person who had not suffered such exposure. The physician reiterated that the tinnitus was, at least to a degree, a military disability. The Board finds the July 2009 private physician’s opinion to be of significant probative value. The physician provided a detailed description of the Veteran’s hazardous noise exposure during service, and an assessment that his hearing loss was probably (exceeding the at least as likely as not standard) related to such noise exposure. As evinced by the record, the physician had a history of treating the Veteran and demonstrated familiarity with the development of his tinnitus symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, the Board finds that the physician’s opinion tends to satisfy the nexus requirement between the Veteran’s in-service hazardous noise exposure and his left ear tinnitus. To the extent that the opinion is lacking in rationale, the Board points out that a clinician is only required to consider all the relevant evidence before forming an opinion and support his or her opinion with an analysis that the Board can consider and weigh against contrary opinions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). While the May 2010 VA examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure, the examiner relied an apparent lack of significant difference in the Veteran’s hearing thresholds at the time of his entrance into active service and the time of his separation from service, and the Veteran’s report that he first noticed tinnitus four years after his separation from service. The examiner did not specifically provide reasons as to why tinnitus would not likely become apparent in the years proximate to his separation from service, especially in light of hazardous noise exposure. In weighing each opinion, the Board finds that the evidence is at least in equipoise as to the etiology of the Veteran’s tinnitus. With resolution of reasonable doubt in the Veteran’s favor, the Board finds that the nexus requirement between current tinnitus and in-service hazardous noise exposure has been met. See Davidson, 581 F.3d 1313 Based on the foregoing, the Board concludes that the evidence is at least in equipoise on certain elements of the claim. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran’s favor. Accordingly, as the benefit-of-the-doubt rule is for application, the Board finds that the grant of the Veteran’s service connection claim for tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert, 1 Vet. App. at 55. If the preponderance of the evidence weighs against the claim, it is denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Allergic Rhinitis The Veteran’s allergic rhinitis has been rated under Diagnostic Code 6522 for allergic or vasomotor rhinitis. Without polyps, more than 50 percent obstruction of the nasal passage on both sides, or a complete obstruction on one side is required for a compensable rating of 10 percent. With polyps, the disability warrants a 30 percent rating assignment. 38 C.F.R. § 4.97, DC 6522. Given the presence of hypertrophy of the Veteran’s nasal turbinates, the Board will also consider the applicability of Diagnostic Code 6523 for bacterial rhinitis, which provides for a 10 percent rating with permanent hypertrophy of the turbinates, and with greater than 50 percent obstruction of the nasal passage on both side or complete obstruction on one side. 38 C.F.R. § 4.97, DC 6523. The evidence of record, including VA examination reports, does not describe the Veteran’s rhinitis as involving polyps, or as involving greater than 50 percent obstruction of both nasal passages or complete obstruction of one nasal passage. In an October 2010 statement, provided with his application for compensation benefits, he asserted that he had persistent allergic rhinitis, consisting of a constant sensation of nasal congestion, which he treated with over-the-counter medications. May 2010 and January 2011 VA examination reports noted that the Veteran’s allergic rhinitis symptoms consisted of a perennial allergy, manifested by nasal congestion. On examination, there was no evidence of polyps and there were no signs of nasal obstruction. While the Veteran’s most recent, October 2019, VA examination report indicated that he had permanent hypertrophy of the nasal turbinates, the examination specifically noted that he did not have greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction of either nasal passage. There were additionally no nasal polyps present. As noted above, a compensable rating for rhinitis, under either DC 6522 or 6523, requires a 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side. While the VA examination reports noted the Veteran’s reports of nasal congestion, and that he had hypertrophy of the nasal turbinates, the reports specifically determined that no obstruction was present and that there were no polyps on examination. The Board has not overlooked the Veteran’s lay statements concerning his rhinitis, specifically, that he has suffered from persistent nasal congestion. He is competent to report on factual matters of which he had firsthand knowledge; and the Board finds that his reports concerning his symptoms have been credible. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). There is no basis, however, for concluding that a layperson such as the Veteran is competent to discern the nature, extent, and severity of his rhinitis in the absence of specialized medical training, which in this case he has not established. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Cf. Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1336-37. Moreover, his VA clinical records have specifically indicated that the required signs and symptoms for a compensable rating have not been present. Thus, even affording the Veteran full competence and credibility, the evidence simply does not show entitlement to a compensable rating under applicable diagnostic codes. As such, entitlement to a compensable rating is not warranted for the Veteran’s allergic rhinitis at any time during the appeal period for this claim. The VA examination and lay reports of record demonstrate a diagnosis of allergic rhinitis with hypertrophy of the nasal turbinates, but without additional symptoms of polyps or nasal passage obstruction. No additional available evidence refutes these findings. Moreover, there is no evidence of record to suggest that the Veteran’s symptoms are more appropriately rated under another diagnostic code or that his symptoms are outside the norm such that they are not contemplated by the rating schedule. The Veteran has not presented argument or evidence otherwise. Thus, a preponderance of the evidence is against finding that the Veteran is entitled to a compensable rating for his rhinitis. Therefore, the claim is denied. PTSD The Veteran contends that his psychiatric symptoms are severe enough to warrant a higher initial rating for his service-connected PTSD disability for the entire appeal period. For reasons indicated below, the Board finds that an increased rating of 70 percent, but no higher, is warranted for the period prior to November 7, 2019, which is currently rated as 50 percent disabling. The Veteran’s service-connected PTSD disability is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9411. Under these criteria, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). With regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Federal Circuit held that a veteran may qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or other symptoms of similar severity, frequency, and duration. A December 2009 letter from the Veteran’s VA clinical social worker, noted his symptoms of ill-controlled anger, frustration, sadness, anxiousness, and at some early points, suicidal and homicidal ideation. The clinician assessed that his symptoms caused him great occupational and social impairment due to his desire to isolate, lack of motivation, and fear of anger outbursts. During initial VA examination in May 2010, the Veteran’s PTSD symptoms were noted as consisting of suicidal thoughts one to two times per month, change of weight with increased appetite, crying spells, guilt, feelings of worthlessness, anger/irritability, anxiety/nervousness, panic attacks, and difficulty concentrating. He was noted to be depressed when not distracted by school, with depression symptoms present every day. The examiner noted that the Veteran had poor impulse control, but that he was not violent, and that he had a history of fleeting suicidal ideation, which had improved with treatment. A May 2010 VA psychiatry treatment report noted that the Veteran had suicidal thoughts about every week, and ongoing nightmares related to his Army experiences. A February 2011 VA psychiatry treatment report noted his increased depression over the prior couple of months and his ongoing suicidal thoughts. The Veteran reported that he had been out of medication, and that he got more depressed around the holidays. He reported that he had not been able to pull out of his depression. He was again noted to have increased depression during an April 2013 mental health consultation. An April 2014 VA psychiatry progress note indicated that he was suffering from insomnia, and episodes of depressive symptoms. A June 2017 VA mental health report again noted the Veteran’s report of worsening depression and anxiety During the Veteran’s most recent VA examination, in November 2019, he was noted to have significant depression, with a feeling that things were “always going to be this way, hopeless, [and] inadequacy.” He noted feeling moderate anxiety, and feeling anxious dealing with people in a work setting and in crowded places. The examiner noted that his psychiatric symptoms included depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstance, including work or a worklike setting. After considering the evidence of record under the guiding principles and regulations set forth above, the Board finds that the evidence supports a finding that he has met the criteria for a 70 percent rating for the entirety of the appeal period. In this regard, the evidence has established that the Veteran has experienced chronic depression, noted in practically every examination and evaluation report, which can be interpreted as near-continuous depression, affecting his ability to function independently. The evidence also describes his continuous struggle with suicidal thoughts with some suicidal ideation near the earlier part of the appeal period. He has also struggled with ill-controlled anger and homicidal ideation just prior to the appeal period. The Veteran’s symptoms were specifically assessed as causing him great occupational and social impairment due to his desire to isolate, lack of motivation, and fear of anger outbursts. Also, the May 2010 VA examiner noted his poor impulse control, consistent with a finding of impaired impulse control. Thus, the Board finds that the Veteran’s symptoms throughout the appeal period are consistent with those specifically described by the criteria for a 70 percent rating, and cause deficiencies in areas such as work, judgment, thinking, and mood, as specifically contemplated in the criteria for a 70 percent rating. Significantly, however, the Board finds that the Veteran’s collective PTSD and psychiatric disorder symptoms are not of the frequency, severity, and duration to cause total occupational and social impairment, as required for a 100 percent rating. Mauerhan, 16 Vet. App at 442-43; Vazquez-Claudio, 713 F.3d at 116-17. Of particular importance, the evidence has not demonstrated that the Veteran has experienced impairment in thought processes or communication, or suffered from delusions or hallucination, or that he has exhibited grossly inappropriate behavior or an inability to perform activities of daily living. While he has consistently been noted to have suicidal thoughts and has had suicidal ideation, he has not been deemed to be in particular danger of hurting himself or others. He has also exhibited no evidence of disorientation to time or place, or memory loss. Accordingly, although the Board has determined that a 70 percent rating, but no higher, is warranted for the Veteran’s service-connected psychiatric disorder for the entirety of the appeal period. Importantly, the evidence has not shown that the symptomatology associated with this disability has resulted in total occupational and social impairment at any time during the appeal period. REASONS FOR REMAND Service connection for OSA With respect to the Veteran’s reopened claim for OSA, the Veteran has contended that he developed OSA as secondary to service-connected disability by means of a metabolic syndrome (obesity), which developed as a result of service-connected disabilities. The Board notes that obesity in and of itself is a finding or symptom, and not a disability for which VA compensation benefits are payable. Thus, a symptom such as obesity, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a disability for which service connection may be granted. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018) (holding that obesity itself is not a disability which can be service connected). Notably, however, VA’s General Counsel has issued a precedential opinion that concludes that obesity may be an “intermediate step” between a service-connected disability and a current disability that may be connected on a secondary basis. In order to meet these criteria, a veteran must demonstrate that a previously service-connected disability caused the obesity; that obesity was a substantial factor in causing secondary disability; and the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017 (January 6, 2017). Thus, given the Veteran’s contentions, and evidence indicating that his service-connected psychiatric disability has resulted in increased appetite and weight gain, the Board finds that remand is warranted to obtain an opinion as to the etiology of his OSA, and to determine if there is a relationship between his service-connected disabilities, his obesity, and his claimed secondary OSA. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection for a right elbow disability and a right thumb disability The Veteran has asserted that he incurred injuries to his right elbow and right thumb during his active service, that he was treated for these conditions during service, and that he has been treated multiple times for arthritis of these joints since. He has also asserted that claimed arm and hand disabilities are secondarily the result of service-connected neck disability. Review of the Veteran’s STRs reveals reports of right hand injury in September 1991, and right elbow injury in December 1992. Post-service treatment records reflect periodic treatment for right thumb and right elbow pain, including a diagnosis of osteoarthritis of the right hand in May 2008, with a description of involvement of the metacarpophalangeal (MP) joint, and treatment in August 2010, with arthralgia diagnoses, and in September 2010, with a diagnosis of right elbow tendonitis and degenerative joint disease (DJD), and right thumb DJD. The Veteran was afforded VA examinations for his right elbow and right thumb in October 2019. While the examiner diagnosed tendonitis of the right hand/fingers, he did not provide an opinion as to the etiology of the disability. Additionally, while the examiner diagnosed triceps tendonitis affecting the right arm, he opined that the claimed the disability was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. In providing this opinion, the examiner relied extensively on an absence of evidence of treatment for an elbow condition for 27 years. The examiner did not address the Veteran’s reports of having received right elbow treatment multiple times since his separation from service, or evidence of intervening treatment with arthritis diagnoses in the years since his separation from service. See Buchanan, 451 F.3d at 1336, n. 1 (a VA’s examiner’s opinion relying on an absence of contemporaneous medical evidence, and not considering lay statements, is inadequate). Given the deficiencies in the October 2019 VA examination reports, remand of these claims is warranted to obtain adequate etiology opinions addressing the Veteran’s diagnosed elbow and thumb disabilities, and considering all evidence of record. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79. Service connection for left ear hearing loss With respect to the service connection claim for left ear hearing loss, the evidence of record does not confirm that the Veteran currently has hearing loss disability severe enough to be considered a disability for VA purposes. See 38 C.F.R. § 3.385. Nonetheless, the May 2010 VA audiological examination report revealed hearing loss in the left ear that came close to constituting a disability in accordance with VA regulations. Further, in the July 2009 letter, the Veteran’s private physician opined that his left ear hearing loss was probably directly related to hazardous noise exposure during service. Where the prior examination was more than 10 years ago, and evidence tends to indicate that the Veteran’s hearing impairment is etiologically related to his in-service hazardous noise exposure, the Board finds that, to afford the Veteran every possible consideration, remand is warranted to obtain contemporary audiological testing results to determine whether he currently meets the criteria for left hearing loss disability for VA purposes. Accordingly, these matters are hereby REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA sleep disorders examination for claimed OSA. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should provide opinions as to whether: (a.) it is at least as likely as not (i.e., a 50 percent 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? In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include the May 2010 VA examination report which indicated that the Veteran had experienced an increased appetite and change of weight associated with his service-connected disability, and lay evidence of record, to include the Veteran’s assertions pertaining to the nature, onset and continuity of sleep apnea symptoms, including as a result of obesity, and the development of a metabolic syndrome as a result of service-connected disabilities. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. 2. Also, arrange for the Veteran to undergo new VA orthopedic examination of his right elbow and right thumb. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify all right elbow and right thumb disabilities—to specifically include tendonitis and degenerative joint disease (arthritis)—currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). (b.) For each such identified disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that such had its onset during service, or is otherwise medically-related to the Veteran’s service, to include elbow and hand injuries noted during service. (c.) If current right elbow or right thumb disability is not at least as likely as not etiologically related to the Veteran’s service, for each such disability, the examiner should then provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disability was caused, or aggravated (made worse) beyond its natural progression by service-connected cervical spine disability. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of diagnosis of, and treatment for, arthritis, and lay evidence of record, to include the Veteran’s assertions as to the nature, onset, and continuity of his right elbow and right thumb symptoms. The examiner is advised that the Veteran is competent to report right elbow and right thumb disability symptoms, including pain, and the onset of such symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 3. Also, arrange for the Veteran to undergo a new VA audiological examination. The claims file and a copy of this REMAND should be made available to the examiner for review. Any and all indicated studies and tests deemed necessary by the examiner, to include audiometry and speech discrimination testing, should be accomplished. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The (CONTINUED ON NEXT PAGE) Veteran is also advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.