Citation Nr: 21031938 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-39 137 DATE: May 25, 2021 ORDER Service connection for obstructive sleep apnea (OSA), as secondary to posttraumatic stress disorder (PTSD), is granted. Service connection for right ear hearing loss, based on service aggravation, is granted. Service connection for left ear hearing loss is granted. Service connection for ocular auras, as secondary to traumatic brain injury (TBI), is granted. Service connection for a right ankle deltoid ligament sprain is granted. Service connection for obesity is denied. FINDINGS OF FACT 1. The Veteran's OSA was caused by his PTSD. 2. The Veteran's preexisting right ear hearing loss was aggravated during his active service. 3. The Veteran's left ear hearing loss is related to his active service. 4. The Veteran's ocular auras were caused by his TBI. 5. The Veteran's right ankle deltoid ligament sprain is related to his active service. 6. Obesity is not a disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA, as secondary to PTSD, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for right ear hearing loss, based on service aggravation, have been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 3. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for ocular auras, as secondary to TBI, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for right ankle deltoid ligament sprain have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for obesity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to July 1986. The Veteran died in February 2021 and the appellant is his surviving spouse. The case is on appeal from a May 2015 rating decision. The Board remanded the issues on appeal in June 2020. The Board also remanded a claim for entitlement to a total disability rating based on individual unemployability (TDIU). In an April 2021 decision, the Board granted this claim. Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 1. Service connection for OSA. Evidence of record indicated that the Veteran has been diagnosed with OSA. See October 2020 Sleep Apnea Disability Benefits Questionnaire (DBQ). The Veteran is service-connected for PTSD. As such, the remaining issue with respect to secondary service connection is whether the Veteran's PTSD disorder caused or aggravated his OSA. As to this issue, the only competent evidence of record is a positive January 2021 private opinion from Dr. L.G. In this opinion, Dr. L.G. referenced himself as a pulmonologist and stated that he was "Board Certified by the American Board of Internal Medicine, Pulmonary and the National Board of Medical Examiners. I have been examining patients with conditions similar to this [V]eteran for over twenty years." The opinion referenced the VA claims file as records that were reviewed. The extensive opinion reviewed the Veteran's medical history and medical records. Dr. L.G. stated that "[b]ased on the extensive medical research, a careful review of the records, and my clinical experience, it is certainly more than reasonable and at least as likely as not that [the Veteran's] PTSD...contributed to the development of his sleep dysfunction and sleep apnea." A multi-page discussion followed, which included citation to medical research. It was stated that the data from one medical journal article "strongly supports an[] association between sleep apnea and PTSD with depressive disorder" and it was referenced that one medical journal article noted that "there is clearly a causal relationship between PTSD and OSA." The Board finds the positive January 2021 private opinion to be sufficient evidence to establish that the Veteran's OSA is secondary to his service-connected PTSD. This opinion was provided by a pulmonologist who reviewed relevant records and included a rationale in support of the conclusion offered that, essentially, the Veteran's OSA was caused by his PTSD. The Board notes that there is no competent opinion of record contrary to the conclusion provided in this positive opinion. Based on the evidence of record reflecting a diagnosis of OSA and the January 2021 private opinion, the Board finds that the requirements for secondary service connection has been met. In sum, the Board finds that the Veteran's OSA was caused by his PTSD. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for OSA is warranted on a secondary basis. The Board acknowledges that the November 2020 VA examiner opined that it is at least as likely as not that the Veteran's obesity caused his OSA on the basis that obesity is a risk factor for OSA. The examiner did not address whether the Veteran's OSA was related to his service-connected PTSD. Thus, in light of the competing private opinion, the evidence relating the Veteran's disability to a service-connected condition is, at worst, in relative equipoise. 2. Service connection for right ear hearing loss. Legal Criteria A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. See 38 C.F.R. § 3.306(b). Under 38 U.S.C. § 1153, a veteran "bears the burden of showing that his preexisting condition worsened in service" and "[o]nce the veteran establishes worsening, the burden shifts to [VA] to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease." See Horn v. Shinseki, 25 Vet. App. 231, 235 n.6 (2012) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004)). Stated differently, a "veteran must initially establish only that a preexisting condition worsened during the period of active duty, and at that point the veteran has the benefit of the presumption of aggravation." See Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). If VA cannot show by clear and unmistakable evidence that the worsening of the preexisting condition was due to the natural progress of the disease, then "the increase is presumed to have been caused by active duty service." See id. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) 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 speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Analysis Initially, evidence of record during the appeal period demonstrated a right ear hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385. See, e.g., September 2020 Hearing Loss and Tinnitus DBQ. The Veteran's June 1983 enlistment examination report contained the results of audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 25 60 The Veteran's May 1986 separation examination report contained the results of audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 20 35 60 Upon review of the June 1983 enlistment examination report, the result of 60 dB at 4000 Hz indicated right ear hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385. The examination report also stated in the "summary of defects and diagnoses" section "high tone loss [right] ear." The Board notes that a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. See 38 U.S.C. § 1111, 38 C.F.R. § 3.304(b). This concept is often referenced as the presumption of soundness. The presumption of soundness is not for application in this case based on the June 1983 enlistment examination report. As the level of hearing loss noted on the examination report met VA's definition of a hearing disability, this means that a right ear hearing loss disability was noted on the examination report and that the presumption of soundness is not for application. See McKinney v. McDonald, 28 Vet. App. 15, 28 (2016) (addressing the inverse situation "when the level of hearing loss noted on an entrance examination does not meet VA's definition of a hearing 'disability,' that level of hearing loss is not a 'defect'"). In review, the Board has concluded that the Veteran had a right ear hearing loss disability that preexisted his active service. As noted above, service connection may be granted for a disability resulting from a disease aggravated by active service and a preexisting disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1131, 1153; 38 C.F.R. § 3.306. As such, the crucial question in this claim is whether the Veteran's preexisting right ear hearing loss disability was aggravated during his active service. Initially, the Board finds, resolving any reasonable doubt in the Veteran's favor, that there was an increase in disability or severity of the Veteran's preexisting right ear hearing loss disability during service. As to this issue, the Board finds probative that a comparison of the audiometric test results from the June 1983 enlistment examination report and the May 1986 separation examination report reflected a worsening at 500, 1000, 2000 and 3000 Hz (the results at 4000 Hz were the same). In addition, service treatment records (STRs) contained lay reports of hearing loss, to include a September 1984 STR that noted a chief complaint of "hard to hear both ears" for a duration of two months and the separation Report of Medical History form that included the Veteran's report of ever having or having now hearing loss. Further, a September 2020 VA opinion stated in part "[e]nlistment audio exam dated on 06/16/1983 shows pre-existing hearing loss at 4 kHz & 6 kHz in the right ear" and "[e]xit audio exam dated on 05/28/1986 shows hearing loss at 3 kHz, 4 kHz & 6k Hz in the right ear, and there was a significant positive threshold shift at 2 kHz...in the right ear since the enlistment audio exam." Based on the evidence discussed, the Board finds that there was an increase disability or severity of the Veteran's preexisting right ear hearing loss disability during service. As outlined above, once worsening of a preexisting disability is shown, the presumption of aggravation applies and clear and unmistakable evidence is required to rebut this presumption. The Board finds that sufficient evidence to rebut the presumption is not present in this case. The Veteran was afforded VA examinations with respect to his hearing loss claim in March 2015 and January 2019. The June 2020 Board remand referenced these examinations as inadequate and remanded this claim for a new examination and opinion. The Veteran was afforded a VA examination in September 2020 and various opinions were provided by an audiologist. One such opinion was that the Veteran's right ear preexisting hearing loss was not aggravated beyond normal progression in military service. While a rationale was provided, the Board finds that it did not sufficiently address why the worsening of audiometric test results at 500, 1000, 2000 and 3000 Hz shown when comparing the separation examination to the enlistment examination did not represent aggravation. Overall, the Board finds that this opinion did not provide the clear and unmistakable evidence necessary to rebut the presumption of aggravation applicable in this case and that the remaining evidence of record did not otherwise provide such sufficient evidence. In sum, the Board finds that there was an increase in disability or severity of the Veteran's preexisting right ear hearing loss disability during service and that accordingly the presumption of aggravation applies. The Board further finds that this presumption has not been rebutted by the required clear and unmistakable evidence. As such, service connection for right ear hearing loss, based on service aggravation, is warranted. 3. Service connection for left ear hearing loss. With respect to the first element of direct service connection, evidence of record during the appeal period demonstrated a left ear hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385. See, e.g., September 2020 Hearing Loss and Tinnitus DBQ. The Veteran's June 1983 enlistment examination report contained the results of audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 0 20 25 The Veteran's May 1986 separation examination report contained the results of audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 20 10 20 35 Upon review of the June 1983 enlistment examination report, in contrast to the right ear that was discussed above, hearing loss was not noted for VA purposes pursuant to 38 C.F.R. § 3.385. With respect to the second element of direct service connection, the Veteran reported military noise exposure. See March 2015 Hearing Loss and Tinnitus DBQ (including a positive nexus opinion to service between tinnitus and military noise exposure, specifically grenades); January 2019 Hearing Loss and Tinnitus DBQ ("History of noise exposure includes weapons firing noise"); September 2020 Hearing Loss and Tinnitus DBQ ("Yelling, explosives, armorer and range"). The Veteran's service personnel records reflected the award of qualification badges for the M16 Rifle and Hand Grenades. Also, as noted above, STRs contained lay reports of hearing loss, to include a September 1984 STR that noted a chief complaint of "hard to hear both ears" for a duration of two months and the separation Report of Medical History form that included the Veteran's report of ever having or having now hearing loss. Based on the evidence outlined, the Board finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran's left ear hearing loss and his active service, as referenced above, the Veteran was afforded VA examinations with respect to his hearing loss claim in March 2015 and January 2019. The June 2020 Board remand referenced these examinations as inadequate and remanded this claim for a new examination and opinion. The Veteran was afforded a VA examination in September 2020 and an opinion was provided by an audiologist. A negative direct service connection opinion was provided that the Veteran's the Veteran's left ear hearing loss was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. While a rationale was provided in support of the opinion, the Board does not find the reasoning provided to be sound and accordingly affords the negative opinion minimal probative value. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion...that contributes probative value to a medical opinion"). Portions of the rationale, in fact, tended to provide positive nexus evidence. In this regard, the opinion stated "[e]nlistment audio exam dated on 06/16/1983 shows normal hearing in the left ear" and "[e]xit audio exam dated on 05/28/1986 shows hearing loss at 4 kHz & 6k Hz in the left ear, and there was a significant positive threshold shift at 1 kHz...in the left ear since the enlistment audio exam." While not fully articulated, the examiner, essentially, stated that the Veteran's left ear hearing was normal upon enlistment, that a significant positive threshold shift occurred during service and that the Veteran had left ear hearing loss upon separation examination. Resolving reasonable doubt in the Veteran's favor, the Board will construe this portion of the opinion to be sufficient evidence to establish a nexus in this case. The Board notes that there is no other adequate, competent opinion of record addressing the issue of nexus. Based on the September 2020 opinion, and resolving reasonable doubt in the Veteran's favor, the Board finds that the third and final element of direct service connection has been met. In sum, the Board finds that the Veteran's left ear hearing loss is related to his active service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for left ear hearing loss is warranted. 4. Service connection for ocular auras. On the August 2014 VA Form 21-526EZ, the Veteran listed as a claimed disability "Traumatic Brain injury with Head aches & blurry vision." The July 2015 rating decision on appeal granted service connection for TBI and migraine headaches, but separately denied service connection for blurry vision. With respect to TBI, the rating decision stated that "review of your [STRs] shows a head injury due to a motor vehicle accident [MVA] in service." With respect to migraine headaches, service connection for this disability was granted as secondary to the TBI. A May 1984 STR noted the Veteran as being in a MVA where the "military vehicle...apparently lost brake hydraulics, struck a civilian vehicle and turned over." The STR noted that the Veteran was knocked unconscious. The Veteran was afforded a VA examination for this claim in February 2015, but the June 2020 Board remand referenced this examination as inadequate. The Board remanded the blurry vision claim for a new VA eye examination. The Veteran was afforded an examination in September 2020 and an Eye Conditions DBQ was completed by an optometrist. Multiple diagnoses were noted, to include "Ocular Auras with migraines." It was noted that "[p]er the Veteran, this condition began 'While in service after an MVA in May 1984' where he 'received head trauma and has had headaches and flashes of bright light ever since'." It was noted that the course of the condition since onset was "Progressed/Worsened." The current symptoms were referenced as "flashes of bright light associated with headaches." The examiner provided a positive secondary service connection opinion that "[t]he claimed condition is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's service connected condition." The rationale stated that "the ocular auras associated with migraines/headaches...is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's service-connected condition of TBI." It was additionally stated that "migraines and headaches are common sequela of TBI and are often associated with ocular auras. Therefore, it is at least as likely as not that the ocular auras were the result of, or aggravated by, the Veteran's service-connected TBI." The Board finds the positive September 2020 VA opinion to be sufficient evidence to establish that the Veteran's ocular auras are secondary to his service-connected TBI. This opinion was provided by an optometrist following examination of the Veteran and included a rationale in support of the conclusion offered that, essentially, the Veteran's ocular auras were caused by his TBI. The Board notes that there is no competent opinion of record contrary to the conclusion provided in this positive opinion. Based on the evidence of record reflecting a diagnosis of ocular auras and the September 2020 VA opinion, the Board finds that the requirements for secondary service connection has been met. In sum, the Board finds that the Veteran's ocular auras were caused by his TBI. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for ocular auras is warranted on a secondary basis. 5. Service connection for right ankle deltoid ligament sprain. With respect to the first element of direct service connection, the Board finds that this was met by way of the October 2020 Ankle Conditions DBQ diagnosis of chronic/recurrent right deltoid ligament sprain. With respect to the second element of direct service connection, the evidence of record is in conflict. In this regard, a January 2015 Ankle Conditions DBQ stated "[t]he date of onset of the symptoms is 1990. The [Veteran] states the above condition began after leaving the service." On the other hand, the October 2020 Ankle Conditions DBQ stated "[t]he [V]eteran reports that he injured his right ankle in 1984. The [V]eteran reports that his machine-gun hit his ankle. He reports that he did have an evaluation for this, and had x-rays. He reports that he also had an injury where he twisted his ankle in Honduras" and that "[h]e reports he still has ankle problems presently." The course of the condition since onset was noted as "[s]tayed the same." Resolving reasonable doubt in the Veteran's favor, the Board will accept the more recent report from the Veteran of an in-service right ankle injury and therefore find that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran's right ankle disability and his active service, the January 2015 VA examiner provided a negative direct service connection opinion. The rationale for this opinion was based on, essentially, the lack of an in-service right ankle injury (stating in part that "there does not appear to be an ankle condition noted in the military records provided") and, as noted above, the Board has accepted the Veteran's report of experiencing an in-service right ankle injury. As such, the Board affords the January 2015 negative VA opinion minimal probative value. Also of record are negative secondary service connection opinions provided by the October 2020 VA examiner (which were requested by the June 2020 Board remand as secondary to a service-connected left knee disability). As to secondary service connection causation, the opinion provided was that "[t]he claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition." The provided rationale was that "[t]his [V]eteran reports that he injured his right ankle while in the service, around 1984. Due to the fact that the [V]eteran said that he injured his right ankle while in the service, I'd say that his right ankle condition is less likely than not proximately due to the result the [V]eteran[']s left knee strain." While facially a negative secondary service connection causation opinion, when read as a whole and resolving reasonable doubt in the Veteran's favor, the rationale tended to provide positive evidence as to the issue of direct service connection nexus. In this regard, the examiner's diagnosis of a chronic/recurrent right deltoid ligament sprain and acceptance (by way of the negative secondary service connection causation opinion) of the in-service onset of such disability, at least implicitly, supports that the Veteran's chronic/recurrent right deltoid ligament sprain had a nexus to service. In review, as noted, the Board has afforded minimal probative value to the January 2015 VA opinion as to the issue of nexus. Also as noted, the Board has found that the October 2020 VA opinion tended to provide positive evidence as to the issue of nexus. There is no other competent evidence of record addressing the nexus issue. Based on the October 2020 VA opinion, and resolving reasonable doubt in the Veteran's favor, the Board finds that the third and final element of direct service connection has been met. In sum, the Board finds that the Veteran's right ankle deltoid ligament sprain is related to his active service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for right ankle deltoid ligament sprain is warranted. 6. Service connection for obesity. Service connection for obesity is not warranted because obesity is not a disability for VA compensation purposes. In this regard, in January 2017 the VA Office of General Counsel issued Precedential Opinion 1-2017, which contained a subject of "Service Connection Based on Obesity." VAOPGCPREC 1-2017 (Jan. 6, 2017). The Board is bound by this opinion. See 38 C.F.R. § 20.105 ("In the consideration of appeals and in its decisions, the Board is bound by...precedent opinions of the General Counsel of the Department of Veterans Affairs"). The opinion held, as relevant, that "[t]he longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with title 38, United States Code." The opinion also held that "[o]besity per se is not a 'disability' for purposes of 38 C.F.R. § 3.310." (Continued on the next page) In review, VAOPGCPREC 1-2017 clearly indicated that obesity is not a disability for VA compensation purposes and that service connection for obesity is not warranted on a direct or secondary basis. See also Walsh v. Wilkie, 32 Vet. App. 300, 303 (2020) (stating that VAOPGCPREC 1-2017 "generally determined that obesity itself was ineligible for service connection on direct or secondary bases because it did not qualify as a disease or injury"). The Board is bound by this precedential opinion and accordingly finds that obesity is not a disability for VA compensation purposes. As such, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for obesity is not warranted. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.