Citation Nr: 21030359 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-44 292 DATE: May 18, 2021 ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. Entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a compensable evaluation for service-connected arthritis of the right elbow is remanded. Entitlement to a compensable evaluation for service-connected multiple fractures of the mandible is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine began during active service. 2. The Veteran's Major Depressive Disorder (MDD), Anxiety Disorder (AD), and Alcohol Dependence Disorder (ADD) are at least as likely as not related to the multiple jaw fractures that he sustained during service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for acquired psychiatric disorders of MDD, AD, and ADD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1991 to August 1995. This matter comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in January 2021 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 1. Entitlement to service connection for degenerative disc disease of the lumbar spine As to the first element of Shedden, for service connection the Veteran must show a current disability. Per the November 2013 VA examination report, the Veteran has a diagnosis of degenerative disc disease lumbar spine, displacement of lumbar disc, and mild thoracolumbar scoliosis. As such, the Board finds that the Veteran's claim meets the first Shedden element for service connection. As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease or injury. Upon review of the Veteran's service treatment records, the Boards notes that the Veteran stated on his separation examination that he suffered from back pains at that time. See July 1995 Separation Examination; see also March 2021 Buddy Statement (relaying that the Veteran suffered multiple back injuries/falls during service). The attending physician also indicated that at service separation, the Veteran suffered from lower back pain with everyday movements. Id. Accordingly, the Board finds that the Veteran's claim meets the second Shedden element for service connection. As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease or injury. Weighing against the Veteran's claim is a November 2013 VA examiner's medical opinion stating that the Veteran did not have any acute or chronic injury to the back during service, nor did he complain of low back pain or seek treatment for back pain until 2013, approximately 18 years after discharge, and therefore it is less likely than not that his diagnosed back conditions are caused by or incurred during service. Here, the Board affords the November 2013 VA examiner's medical opinion no probative value as it is based on an inaccurate factual basis, namely that the Veteran did not suffer, or complain of, back pain during service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also March 2021 Brief in Support of Claim. To point, and as previously indicated/evidenced by his STRs, the Veteran suffered from everyday lower back pain at service separation. See July 1995 Separation Examination. Weighing in favor of the Veteran's claim is a March 2021 private medical opinion by Dr. D.B.M. opining that it is at least as likely as not that the Veteran's thoracolumbar condition is the direct result of multiple injuries he sustained while on active duty. Specifically, the lay testimony of record reveals that the Veteran fell during mountain training in approximately June 1992, and again in approximately 1994 during training in an unexpected snow blizzard. See id.; March 2021 Buddy Statement. The Board finds Dr. D.B.M.'s medical opinion to be the most probative of record as it is based upon a thorough and comprehensive review of the Veteran's medical history, to include the lay testimony of record, as well as the applicable medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that service connection for degenerative disc disease of the lumbar spine is warranted, as the most probative evidence of record reveals that he sustained injuries to his back during service and reported the same at separation, of which Dr. D.B.M. has medically associated with his currently diagnosed thoracolumbar condition. See March 2021 medical opinion by Dr. D.B.M.; July 1995 Separation Examination. The claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for an acquired psychiatric disorder As to the first element of Shedden, for service connection the Veteran must show a current disability. Of record is a medical diagnosis by Dr. A.E.D. indicating that the Veteran suffers from Major Depressive Disorder (MDD), Anxiety Disorder (AD), and Alcohol Dependence Disorder (ADD). See November 2020 private medical opinion by Dr. A.E.D. As such, the Board finds that the Veteran's claim meets the first Shedden element for service connection. While Dr. A.E.D. indicated that the Veteran suffers from some posttraumatic stress disorders (PTSD) like symptoms, a formal diagnosis was not given, and therefore the Board's analysis will proceed with addressing only those acquired psychiatric disorders for which the Veteran has been diagnosed during the pendency of his claim, namely MDD, AD, and ADD. Id. As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease or injury. During service, the Veteran suffered multiple jaw fractures which have been medically linked to his acquired psychiatric diagnoses, and therefore the Board concedes that the Veteran's claim meets the second Shedden element to service connection. See November 2020 medical opinion by Dr. A.E.D.; July 23, 1992 STR (indicating that the Veteran suffered an injury to his jaw during service for which he is now service connected for). As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease, injury or event. The Board notes that there are no medical opinions of record weighing against the Veteran's claim. Weighing in favor of the Veteran's claim is Dr. A.E.D.'s medical opinion that the Veteran's currently diagnosed MDD, AD, and ADD conditions at least as likely as not incurred during his military service as due to psychological stressors, namely the injury to the Veteran's jaw in 1992 and harassment during his military service. Dr. A.E.D. indicated that the aforesaid nexus opinion is based upon a review of the Veteran's claims file in its entirety. The Board finds Dr. A.E.D.'s medical opinion to be most probative on the issue of nexus as its rationale and conclusion is well supported by the evidence of record (medical and lay). See also January 2021 Board hearing transcript. In sum, the Board finds that service connection is warranted for MDD, AD, and ADD as due to the injury to the Veteran's jaw during service, the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to a compensable evaluation for service-connected arthritis of the right elbow is remanded. 4. Entitlement to a compensable evaluation for service-connected multiple fractures of the mandible is remanded. During the Veteran's January 2021 Board hearing, he testified to the fact that his claimed for bilateral hearing loss condition, as well as his service-connected right elbow and mandible disabilities have worsened since 2013 when they were last examined by VA. To point, the Veteran testified that (i) his hearing has worsened; (ii) he suffers increased pain resulting in additional functional loss in his service-connected right elbow; and (iii) has paralysis along the trigeminal nerve associated with his service-connected mandible disability. See also March 2021 Brief in Support of Claim. As such, given the Veteran's contentions of worsening symptomatology, and in light of the passage of time since his last VA examinations, the Board finds that a remand for further examination to obtain contemporaneous clinical findings and appropriate testing results to assess the severity of his claimed for hearing loss condition and service-connected right elbow and mandible disabilities is needed. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 5. Entitlement to service connection for sleep apnea is remanded. Per the Veteran's January 2015 Notice of Disagreement (NOD), the Veteran expressed disagreement with the fact that the RO did not consider entitlement to service connection for sleep apnea based on a secondary service connection theory of entitlement as due to the Veteran's service-connected deviated septum status post broken nose disability. See also March 2021 Brief in Support of Claim. As a statement of the case has not been issued, the Board only has limited jurisdiction and must remand this issue. Manlincon v. West, 12 Vet. App. 238, 240 (1999); 38 C.F.R. § 19.9 (c). 5. Entitlement to service connection for a right knee disability 6. Entitlement to service connection for a left knee disability The record reveals conflicting medical evidence on the issue of service connection for a bilateral knee condition warranting a remand of the Veteran's claim to acquire an addendum medical opinion. To point, while Dr. D.B.M. associates the Veteran's diagnosis of bilateral chondromalacia of the patella of the knee joints with the Veteran's active duty military service, the medical opinion did not specifically address the Veteran's post service knee injury in 2013. See March 2021 medical opinion by Dr. D.B.M.; July 5, 2013 VA treatment record. As such, an addendum medical opinion is needed, one that considers the Veteran's full medical history for his claimed bilateral knee condition. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any and all outstanding VA treatment records since 2015. 2. Schedule the Veteran for VA medical examinations to assess (i) the nature and etiologies of his claimed for bilateral hearing loss and bilateral knee conditions; and (ii) the current severity levels of his service-connected right elbow and mandible disabilities. For the Veteran's claimed bilateral hearing loss condition... a. Does the Veteran have a current diagnosis of hearing loss in either ear for VA compensation purposes? If, and only if, the Veteran is found to have a diagnosis of hearing loss in either ear for VA compensation purposes, then opine as to the following: b. Is it at least as likely as not (50 percent probability or greater) that any currently diagnosed hearing loss condition of the Veteran's is etiologically related to acoustic trauma sustained in during his active duty military service? For the claimed for bilateral knee condition(s)... a. Is it at least as likely as not (50 percent probability or greater) that the Veteran has a bilateral knee condition that incurred in service, or is otherwise directly related to an in-service disease, injury or event? The VA examiner is requested to specifically address the March 2021 private medical opinion by Dr. D.B.M., as well as the July 5, 2013 VA treatment record revealing a post service knee injury. See VBMS, document labeled "Medical Treatment Record - Non-Government Facility," receipt date March 24, 2021; VBMS, document labeled "Capri," receipt date November 21, 2013. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to service connection for sleep apnea. See VBMS, document labeled "NOD," receipt date January 27, 2015. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.