Citation Nr: 21025654 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-08 235 DATE: April 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is granted. Entitlement to a disability rating greater than 50 percent for service-connected PTSD is denied. REMANDED Entitlement to service connection for a left forearm skin condition, to include junctional nevus, is remanded. Entitlement to service connection for malignant melanoma of the right leg is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss disability was caused by in-service acoustic noise exposure. 2. The evidence is at least evenly balanced as to whether the Veteran’s diagnosed OSA was aggravated by his service-connected PTSD. 3. Occupational and social impairment due to the Veteran’s PTSD has not risen to the level of deficiencies in most areas, such as work, family relations, judgment, or thinking. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for OSA as secondary to service-connected PTSD, on the basis of aggravation, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The effects of the Veteran’s PTSD have not been met or closely approximated the criteria for a disability rating higher than 50 percent. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1968 to February 1970, to include service in the Republic of Vietnam. The Veteran subsequently served in the West Virginia Air National Guard until 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In October 2018, the claim was remanded by the Board to the agency of original jurisdiction (AOJ) for further development. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after 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). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 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. Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his hearing loss is related to incidents of in-service acoustic trauma sustained while he served as a rifleman in Vietnam as well as when he injured his ears when a plane he was on descended without proper depressurization while on active duty for service with the West Virginia Air National Guard. The Veteran underwent VA examination in September 2020, which confirmed his bilateral hearing loss. The examiner opined that his bilateral hearing loss was less likely than not related to his active service or the February 1997 incident with the West Virginia Air National Guard. As rationale, he noted that the Line of Duty Determination letter confirms that the February 1997 incident occurred during and related to military service. However, he stated that there were “no significant threshold shifts [ ] observed between audiograms performed prior to and following this incident (October 1996 and April 1997).” Regarding active duty service, the examiner noted that a 1984 audiometric examination did not reveal any significant threshold shifts in either ear. As a result, he posited that “the available evidence does not demonstrate to 50% likelihood that claimant’s current diagnosis of hearing loss was uniquely and exclusively caused by military service.” However, the Board finds that the examiner’s opinion regarding his active service is flawed as it is based on the absence of in-service evidence of bilateral hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Notably, the examiner failed to consider the Veteran’s competent and credible lay statements, which include his assertion of bilateral hearing loss in service, and the continuation of those symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The Board finds that the Veteran’s own lay statements regarding the onset of his hearing loss in service, and continued diminished hearing since discharge from service are competent and credible. At his Board hearing, the Veteran testified that he was exposed to very loud noises without any hearing protection while serving as an infantry rifleman in Vietnam. The Veteran’s service records confirm that his military occupational specialty (MOS) was light weapons infantryman and that he served in Vietnam for about 12 months. He also received the Combat Infantryman’s Badge, Vietnam Service Medal with two Bronze Stars, and Vietnam Campaign Medal with Device 60. Moreover, the Veteran is service connected for tinnitus, and acoustic trauma is conceded. Given the competent and credible statements as to in-service noise exposure consistent with the nature and proximity of the Veteran’s active service duties and experiences and hearing difficulties in and since service, the evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss is related to his in-service acoustic trauma. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). 2. Entitlement to service connection for OSA The Veteran contended that his diagnosed OSA is related to service and/or his service-connected PTSD. In support of his claim, the Veteran submitted medical literature and articles indicating a relationship between PTSD and sleep apnea. Pursuant to the Board remand, VA medical opinion was obtained in August 2020. The examiner opined that it was less likely than not that the Veteran’s diagnosed OSA is proximately due to his PTSD. As rationale, he stated that although there are some reports that suggest a causal relationship between the two conditions, more evidence is required to establish a link. Regarding aggravation, the examiner opined that it was at least as likely as not that the Veteran’s OSA was aggravated beyond its natural progression by his service-connected PTSD. As rationale, he stated that “PTSD results in disruptive sleep attributed to varying factors” and his PTSD and other factors may have negatively affected the Veteran’s sleep apnea “aggravating the condition beyond its natural progression.” The Board finds that the evidence of record shows that the Veteran’s diagnosed OSA is not related to his active service or proximately due to his PTSD. However, resolving reasonable doubt in favor of the Veteran, the Board will find that his current sleep apnea is aggravated by his service-connected PTSD. The August 2020 VA examiner noted that there was a relationship of increased prevalence of sleep apnea in those with PTSD. Therefore, it was at least as likely that his OSA was aggravated beyond its natural cause by his PTSD. The VA examiner provided rationale to support the opinion. There was no indication that the VA examiner was not fully aware of the Veteran’s past medical history or that he misstated any relevant fact. The Board finds, resolving the benefit of the doubt in favor of the Veteran, that service connection for sleep apnea, secondary to his PTSD, by way of aggravation, is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to a higher rating for PTSD Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is question as to which of two evaluations 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. The rating agency shall assign a rating 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also 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). The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and is rated under the General Rating Formula for Mental Disorders. The Veteran’s service-connected PTSD is currently rated 50 percent disabling. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when 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 worklike setting); and inability to establish and maintain effective relationships. A maximum 100 percent disability rating is warranted when 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; and memory loss for names of close relatives, own occupation, or own name. Under the General Rating Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms, both listed and unlisted, caused the level of impairment required for a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In the October 2018 remand, the Board noted that the Veteran testified that subsequent to his prior December 2015 VA PTSD examination, he had been hospitalized for a suicide attempt in December 2016. The Board remanded for a new VA examination to address the current severity of the Veteran’s PTSD, to specifically include discussion of the Veteran’s hospitalization for attempted suicide in December 2016. Pursuant to the Board remand, VA examination was obtained in August 2020. The examiner noted the Veteran’s PTSD and stated that it caused occupational and social impairment with reduced reliability and productivity. The examiner discussed the Veteran’s history since his prior examination, noting that the Veteran remains married and reports a good relationship with his children and that he has some good friends in his Vietnam war support group that he attends. The examiner stated that although the Veteran has retired he reported staying busy with activities including reading, shooting at the range, hiking with his dogs, and occasionally preaching at his church. The examiner also noted the Veteran’s December 2016 admission to a VA medical center related to an attempted suicide. He indicated that the Veteran does not have suicidal ideation. He noted that the Veteran denied any subsequent hospitalizations as well as any current or recent suicidal ideations. The Veteran reported that he continues to struggle with anger and tries to stay calm but says “it’s hard to cope.” The Veteran’s PTSD symptoms include depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and impaired impulse. The examiner indicated that the Veteran was alert with appropriate dress and proper hygiene and was oriented to all spheres. The Veteran’s “mood was presented as anxious and dysphoric with congruent affect. Thought content was logical, relevant and goal-directed. There was no evidence of thought disturbance or audio/visual hallucinations. Insight and judgment are considered intact. Psychomotor function was without abnormality.” The Board finds that the Veteran’s PTSD disability picture has not met or approached the criteria for a rating higher than 50 percent. His PTSD has resulted in limitation such as anxiety, impulse issues that make it difficult to control his anger as well as mood problems, but he reportedly maintains fairly normal judgment and thinking. Notably, there have not been indications of even more severe impairment such as delusions, dangerous thoughts or behavior, impaired self-maintenance, disorientation, or suicidal ideation. While the Veteran was hospitalized for a suicide attempt in 2016, subsequent medical evidence shows that he denied any recent or current suicidal ideation. VA psychiatry treatment records dated in July 2017 and October 2017 note that the Veteran does not exhibit any suicidal thoughts; moreover, he denied any current or recent suicidal ideation at the August 2020 VA examination. In addition, the Veteran reported having a good relationship with his family and having good friends, as well as participating in activities in social settings such as attending and speaking at his church. Moreover, at the Board hearing, the Veteran indicated that they were managing until his wife’s declining health issues, including her recent handicap, contributed to his stress. Thus, the preponderance of the evidence is against a rating higher than 50 percent for his PTSD. The Board acknowledges that the Veteran is competent to report symptoms of a psychiatric disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). There is no basis to question the credibility of those statements. However, the Veteran is not competent to identify a specific level of impairment of a psychiatric disability according to the appropriate diagnostic code. Competent evidence concerning the nature and extent of his service-connected psychiatric disability has been provided by medical professionals who have examined and treated him. The medical findings directly address the criteria under which the disability is evaluated. The Board finds these records to be competent and probative evidence of record, and therefore are accorded greater weight than the Veteran’s subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected PTSD. REASONS FOR REMAND The Veteran contended that the skin conditions on his right leg and left forearm were related to his active service, to include his presumed herbicide agents exposure while serving in Vietnam as well as sunburn exposure. Pursuant to the remand, VA examination was obtained in August 2020. The examiner noted a diagnosis of malignant melanoma of the right leg, but found no evidence of current left forearm malignant melanoma. The examiner opined that the Veteran’s malignant melanoma of the right leg was less likely than not related to service. As rationale, he stated that there is “no evidence to suggest a direct result to active duty or sun exposure. The location of the melanoma is not in a highly sun exposed area.” However, the examiner’s opinion is flawed because he did not address whether the Veteran’s right leg malignant melanoma may be related to his herbicides agent exposure while serving in Vietnam, as directed. Regarding his left forearm, the Board notes that March 5, 2015 private medical records from Dr. M. O. indicate a diagnosis of junctional nevus of the left forearm. Thus, although the Veteran’s service-connection left forearm service connection claim has been adjudicated as one for malignant melanoma alone (and the VA examiner did not find a diagnosis of current left forearm malignant melanoma), based on the evidence of record suggesting that his left forearm skin condition may be attributable to junctional nevus or similar skin condition, the Board will expand the issue on appeal to include consideration as to whether service connection may be granted for any left forearm skin condition. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009). For the reasons discussed above, the skin issues must be remanded for further development. These matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a qualified physician to determine the nature and etiology of diagnosed malignant melanoma of the right leg as well as any left forearm skin condition, to include diagnosed junctional nevus. The entire claims file must be provided and reviewed prior to rendering the requested opinion. All necessary testing should be conducted. 2. Upon review of the record, the examiner should opine the following: (a) Is at least as likely as not (a 50 percent or greater probability) that any diagnosed malignant melanoma of the right leg was incurred in or caused by active service? (b) Is at least as likely as not (a 50 percent or greater probability) that any diagnosed junctional nevus of the left forearm or other left forearm skin condition was incurred in or caused by active service? The examiner should consider the March 5, 2015 private medical records from Dr. M. O. noting a left forearm junctional nevus diagnosis. In rendering the above opinion, the Board directs the examiner’s attention to the Veteran’s April 2018 Board hearing testimony that his skin conditions may have been caused his herbicide agents exposure and/or sunburns while serving in the Republic of Vietnam. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, Associate 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.