Citation Nr: 21030224 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-20 250 DATE: May 18, 2021 ORDER The request to reopen the previously denied claim for entitlement to service connection for right ear hearing loss is denied. The request to reopen the previously denied claim for entitlement to service connection for left ear hearing loss is granted. The request to reopen the previously denied claim for entitlement to service connection for tinnitus is denied. A disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to the service-connected PTSD, is remanded. FINDINGS OF FACT 1. A June 2012 rating decision denied service connection for right ear hearing loss. The Veteran did not appeal that decision, and new and material evidence was not submitted within the appeal period. 2. Evidence added to the record since the June 2012 rating decision is new, but not material, and does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for right ear hearing loss. 3. A June 2012 rating decision denied service connection for left ear hearing loss. The Veteran did not appeal that decision, and new and material evidence was not submitted within the appeal period. 4. Evidence added to the record since the June 2012 rating decision is not cumulative or redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating the Veteran's claim for service connection for left ear hearing loss. 5. A June 2012 rating decision denied service connection for tinnitus. The Veteran did not appeal that decision, and new and material evidence was not submitted within the appeal period. 6. Evidence added to the record since the June 2012 rating decision is new, but not material, and does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for tinnitus. 7. During the entire period of the claim, the Veteran's service-connected PTSD manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The June 2012 decision denying service connection for right ear hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence having not been received, the criteria for reopening the claim for service connection for right ear hearing loss have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The June 2012 decision denying service connection for left ear hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 4. New and material evidence having been received, the criteria for reopening the claim for service connection for left ear hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The June 2012 decision denying service connection for tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 6. New and material evidence having not been received, the criteria for reopening the claim for service connection for tinnitus have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2002 to December 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 and October 2018 rating decisions issued by the Department of Veteran Affairs (VA) Regional Office (RO). In July 2019 and November 2020 correspondences, the Veteran withdrew his request for a Board hearing for the above issues. 38 C.F.R. § 20.704(e). Reopening Claims Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's claims for service connection for bilateral hearing loss and tinnitus was initially denied in a June 2012 rating decision. The RO determined that service treatment records (STRs) were silent for complaints or treatment for hearing loss or tinnitus. Furthermore, the RO determined that the Veteran did not have a current diagnosis for hearing loss, for VA purposes. At the time of the decision, the evidence of record included STRs, VA treatments records and examinations. The Veteran did not appeal the rating decision, nor did he submit relevant evidence within one year of that decision; therefore, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. In support of his claim to reopen, VA treatment records were associated with the claims file. A May 2017 treatment record reflects an audiological evaluation that demonstrated normal hearing in the right ear and left ear hearing with a 40dB loss at 4000Hz. See September 2018 CAPRI. This evidence, newly established and not previously available (per 38 C.F.R. § 3.156(c)), was not of record at the time of the prior decision, relates to facts necessary to support the Veteran's claim for left ear hearing loss, as it demonstrates a current hearing loss disability for VA purposes, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim on the merits. Hence, reopening of the claim for service connection for left ear hearing loss is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). However, VA treatment records associated with the claims file since the final June 2012 rating decision are new but not material as it does not raise a reasonable possibility of substantiating the claims for right ear hearing loss and tinnitus. VA treatment records do not show a current hearing loss disability in the right ear nor does it establish any complaints or treatments for hearing loss in service. Furthermore, statements provided by the Veteran in his September 2014 notice of disagreement (NOD) are not new and do not establish right ear hearing loss or a nexus between his claimed hearing loss and tinnitus to service. As such, his statements are not material. In sum, while the Board acknowledges evidence added to the record since the prior final rating decision is new, it is not "material" in that there remains no evidence tending to link any right ear hearing loss and tinnitus to the Veteran's service. As new and material evidence has not been found, the application to reopen the claims for service connection for right ear hearing loss and tinnitus is denied. Increased Rating The Veteran's service-connected PTSD has been evaluated as 30 percent disabling from October 6, 2011 under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the provisions for rating psychiatric disorders, a 30 percent rating is assigned when a PTSD causes 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent 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 work like setting; inability to establish and maintain effective relationships.) Id. A 100 percent 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; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the degree of occupational and social impairment resulting from manifestations of the disability at issue. However, the use of the term "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 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). 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. 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. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. A November 2011 VA examination reflected a diagnosis for PTSD and alcohol abuse. The examiner found that the Veteran's mental diagnosis resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks. The Veteran reported that he was married with one child and 3 stepchildren and that his previous relationships never lasted more than 6 months. He also reported nightmares and domestic violence against significant others while sleeping. The Veteran stated that he owned a transportation company since 2008 and denied any problems at work or symptoms that affected his occupational environment. He also discussed a rape charge in 2002, that was eventually dropped, and the effects of such charge that led to his substance abuse. The examiner noted the Veteran's symptoms included anxiety; suspiciousness; mild memory loss; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances and his reports of memory loss for major events, names, and dates prior to Iraq; sleep disturbances; increased startled reactions; and claustrophobia. In September 2014, the Veteran reported sleepless nights as a commercial truck driver and fluctuating good/bad days. VA treatment records in 2015 and 2016 documented the Veteran's reports for stress and depression due to his job, nightmares, irritability, sleeplessness, increased alcoholic consumption, stress, and relationship problems. He also reported conflict with his wife at the time. He denied suicidal ideations. See March 2016 CAPRI. A September 2016 VA examiner found that the Veteran's mental diagnosis resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks. The Veteran reported that he was divorced and had a fluctuating relationship with his daughter. He also reported that his last intimate relationship, in February 2016, ended after 6 months and that he had no friends in his current home state of Idaho but did in California. He stated that he was an avid shooter in his free time and not a fan of crowded places. He also stated that he struggled with anger following the passing of his sister and often slept with a gun under his pillow; he noted a particular incident where he put a gun in his mouth in 2009 due to depression and heavy drinking. The examiner noted symptoms of anxiety; sleep impairment; and disturbances of mood/motivation. Upon behavioral observations, the Veteran was well dressed, oriented, and cooperative and displayed good hygiene, normal speech limits, and good judgement. There was no evidence of hallucinations. VA treatment records continued to demonstrate the Veteran's complaints for stress and depression. He reported that he had to reduce his time at work due to obtaining full custody of his daughter following a domestic incident in her mother's household. He also continued to struggle with emotions surrounding his sister's death. See September 2018 CAPRI. A June 2019 VA examiner noted the Veteran's mental diagnosis resulted in occupational and social impairment due to mild/transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran reported that he lives with his 7-year-old daughter and his fiancé of two years, along with her daughter and grandson. He stated that his relationship with his daughter fluctuates due to trauma she experienced in her mother's household but that he has a great relationship with his fiancé and her children, as well as, a great relationship with his friends. He stated that he participates in extracurricular activities including racing, fishing, and family outdoor activities. The examiner noted symptoms of anxiety and the Veteran's reports of nightmares occurring 3-4 times a week; frustration; anxiousness; and depression. He denied suicidal ideations or difficulties in daily functioning and reported overall improvement in functioning. The competent medical evidence of record does not show the Veteran's symptoms are of more severe nature or frequency, such as a 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; or difficulty in establishing and maintaining effective work and social relationships. Although the Veteran reports feelings of anger, depression, stress, anxiety, and occasional nightmares, all the psychiatric examinations of record have shown him to have good judgment, impulse control, and insight. The evidence shows that the Veteran has a working relationship with his daughter who now lives with him full-time, and a great relationship with his fiancé, her children, and his friends. He also engages in extracurricular activities in his free time and has stated that his occupation as a truck driver allows him to manage some of his PTSD symptoms. Furthermore, he denied any active suicidal ideations, intent, or plans throughout the appeal period. Overall, the Board finds the Veteran's symptoms more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks. He has not shown impaired impulse control, difficulty in adapting to stressful circumstances, or the inability to establish and maintain effective relationships. Conversely, total occupational and social impairment has not been shown by the evidence of record. The Veteran is currently working and in a committed relationship. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning a rating higher than 30 percent for the Veteran's PTSD, the doctrine is not for application. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran seeks service connection for left ear hearing loss. A November 2011 VA audiological examination did not demonstrate any current hearing loss, for VA purposes. Speech discrimination scores were 100%, bilaterally. A May 2017 VA audiological treatment record demonstrates that the Veteran may have current left ear hearing loss, for VA purposes, evidenced by a 40dB loss at 4000Hz upon audiological evaluation. See September 2018 CAPRI. As such, a remand is warranted for a new examination to determine the etiology of his current left ear hearing loss disability. The Veteran also seeks service connection for OSA. The Veteran was afforded a VA examination in September 2018. The examination demonstrated a diagnosis of OSA. The examiner opined the OSA was not proximately due to or the result of PTSD. The examiner noted that one week prior to the Veteran's sleep study, he complained of stress due to finances but not PTSD and that while there is potential for an association between OSA and PTSD, there are no current research studies to support this. The examiner also pointed to several risk factors that contribute to OSA, to include age, gender, obesity, upper airway soft tissue abnormalities and noted the Veteran's BMI was over 30 at the time of his sleep study, which in turn increases his odds of having OSA. Lastly, the examiner concluded that a more concrete association between OSA and PTSD is insomnia caused by PTSD, but that insomnia was not an issue at the Veteran's last sleep study due to shortened sleep latency. In a December 2019 addendum opinion, the examiner opined the OSA was not aggravated by the PTSD. The examiner indicated that PTSD patients frequently have insomnia and that 70 to 90 percent of them have difficulty falling or staying asleep. The examiner also indicated that patients with sleep apnea have fragmentation of sleep, equivalent to insomnia, which in turn does not imply that sleep apnea is caused or aggravated by PTSD but conversely the opposite. The examiner noted the Veteran's complaints in his sleep study for poor sleep hygiene and Class IV Mallampti airway, known to correlate with OSA. Lastly, the examiner concluded there was no evidence of insomnia in the Veteran's sleep study because 10 percent of his arousals occurred during REM sleep, accounting for 20 percent of the night, and that due to nightmares occurring during REM sleep, there was no evidence of nightmares at such time. The Board finds the September 2018 VA opinion is inadequate. First, the examiner noted in the aggravation opinion that 70 to 90 percent of PTSD patients have insomnia, known to be associated with both PTSD and OSA. However, the examiner also found the Veteran did not have insomnia based on one sleep study. Second, the examiner also failed to opine whether the Veteran's sleep apnea is related to service on a direct basis. For these reasons, the Board finds the September 2018 VA examination is inadequate for determining entitlement to service connection for OSA. After careful review of the record, the Board finds that a remand is warranted to obtain an additional medical opinion to address conflicting medical evidence concerning the etiology of the Veteran's OSA. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his left ear hearing loss. The electronic claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements; the examiner must indicate on the examination report that such review was undertaken. The audiometry examination must include a speech recognition test using the Maryland CNC wordlist and a Puretone audiometry test. Any and all studies, tests, and evaluations deemed necessary by the examiner should also be performed. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ear hearing loss disability was caused or aggravated by his active service, including noise exposure therein. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. The examiner should also note normal hearing tests during service do not foreclose the possibility of a causal link between post-service hearing loss and an in-service injury. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A thorough explanation for any opinion must be provided. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Send the claims file to a VA examiner with appropriate expertise for an addendum opinion to determine the nature and etiology of the Veteran's OSA. The clinician providing the opinion must be provided access to the electronic claims file and indicate review of the file in the examination report. If examination of the Veteran is necessary, such should be arranged. Note: The Office of General Counsel recently laid forth the standard for determining whether the Veteran could establish entitlement for service connection using obesity as an "intermediate step" between a service-connected disability and a current disability. See VAOPGCPREC1-2017. Obesity is not a "disease" or "injury" for the purpose of 38 U.S.C. §§ 1110 and 1131, however, obesity may be 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. In establishing whether the Veteran's obesity was a substantial factor in causing sleep apnea, and whether sleep apnea would not have occurred but for obesity caused by the Veteran's service-connected PTSD, the examiner must address: (a) Whether the Veteran's service-connected PTSD caused the Veteran to become obese or aggravated his obesity; (b) if so, whether the obesity was a substantial factor in causing the Veteran's sleep apnea; and (3) whether the sleep apnea would not have occurred but for obesity caused by the service-connected PTSD. The examiner must also address whether it is at least as likely as not (50 percent probability or more) that the Veteran's OSA had its onset during service or is otherwise related to Veteran's active service. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.