Citation Nr: 22040130 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-49 570 DATE: July 13, 2022 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for type II diabetes mellitus is granted. REMANDED Entitlement to service connection for diabetic retinopathy is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a lumbar spine condition is remanded. Entitlement to a disability rating greater than 10 percent for right hip limitation of extension prior to July 9, 2017 and a compensable rating thereafter is remanded. Entitlement to a disability rating greater than 10 percent for right hip limitation of flexion prior to July 9, 2017 and a compensable rating thereafter is remanded. Entitlement to a compensable disability rating for right hip limitation of rotation prior to July 9, 2017 and a rating greater than 10 percent thereafter is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his tinnitus began in service and has continued to the present. 2. Resolving reasonable doubt in the Veteran's favor, his OSA is secondary to his service-connected depressive disorder. 3. Resolving reasonable doubt in the Veteran's favor, his diabetes is secondary to his service-connected depressive disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1994 to February 1996. He appeals an April 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for OSA, diabetes with retinopathy, hypertension, ED, and a lumbar spine condition. Also before the Board of Veterans' Appeals (Board) is the appeal of a July 2017 rating decision denying entitlement to a disability rating greater than 10 percent for right hip limitation of rotation, and compensable disability ratings for each right hip limitation of extension and flexion. A Board hearing was held in December 2021. A transcript is of record. The Veteran's April 2016 notice of disagreement (NOD) included the issue of entitlement to service connection for tinnitus, which was not addressed in the April 2015 rating decision. Rather, an April 2014 rating decision most recently denied service connection for tinnitus. Generally, a veteran has one year from the date on which VA issues notice of a decision to file a valid NOD. See 38 C.F.R. § 19.21, 19.24(b). Here, the Veteran's April 2016 NOD for tinnitus was untimely as it was filed almost two years after the April 2014 rating decision. However, the AOJ accepted the entirety of the April 2016 NOD and issued a subsequent October 2018 Statement of the Case (SOC) that included the issue of tinnitus. Then, the Veteran timely filed a substantive appeal and argued for entitlement to service connection for tinnitus before the Board. See October 2018 VA Form 9; December 2021 Board Hr. Tr. at 9. As such, the Board finds it has jurisdiction over the issue of entitlement to service connection for tinnitus. See generally, Percy v. Shinseki, 23 Vet. App. 37 (2009); Corry v. Derwinski, 3 Vet. App. 231, 235 (1992). A veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. See 38 C.F.R. § 3.310(a). To prevail on the issue of entitlement to secondary service connection, there must be evidence of (1) a current disability; (2) a service-connected disability; and, (3) a nexus establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As to the third Wallin element, the current disability may be either (a) proximately caused by, or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Thus, a claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. Lynch v. McDonough, 21 F.4th 776 (2021). Tinnitus Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (2013). Tinnitus is such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Veteran reported that as an infantry paratrooper in service, his "daily training with weapons, [and] explosives...caused ringing in his ears" that has continued to the present. See December 2021 Board Hr. Tr. at 9. Because tinnitus is a condition capable of lay observation, the Veteran is competent to testify about his observed symptoms and the actual existence of the condition. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also finds the Veteran's statements credible as they are corroborated by the record. For instance, the record reflects the Veteran served with a military occupational specialty (MOS) of infantryman and received the expert infantryman badge. See DD Form 214. This MOS has a high probability for excess noise exposure. Additionally, the Veteran consistently stated the ringing in his ears began during service. See, e.g., February 2011 and December 2013 VA examination reports; April 2016 Veteran letter. For example, the Veteran received a VA examination in April 1996, just two months after his separation from service, where he noted "the ringing in [his] ears started [in] September 1995." Thus, the Board finds the Veteran's lay statements, when weighed against the evidence of record, probative. The Veteran was afforded examinations in April 1996, February 2011, and December 2013. The first two VA examiners did not provide an opinion regarding the etiology of the Veteran's tinnitus; therefore, the examinations are not probative. The December 2013 examiner, however, opined his tinnitus was less likely than not related to his in-service noise exposure. See December 2013 VA examination report. As rationale, the examiner noted the Veteran had mild to moderate bilateral hearing loss at separation, but the audiogram results at the December 2013 examination were inconsistent with the separation audiogram. Id. While this rationale may have relevance to the Veteran's hearing loss, it does not provide any insight into his claimed tinnitus. Additionally, the examiner did not consider the Veteran's competent statements of record, noted above. As such, the opinion is not probative. Accordingly, the evidence for and the evidence against the Veteran's claim is at least in relative equipoise. Giving the Veteran the benefit of the doubt, the Board finds the Veteran's tinnitus began in service and has continued to the present. Accordingly, service connection for tinnitus is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. OSA The Veteran generally contends his service-connected depressive disorder caused or aggravated his OSA. See, e.g., October 2014 VA Form 21-526EZ; April 2016 NOD; December 2021 Board Hr. Tr. at 14. He provided a March 2015 Sleep Disorders online article noting "being overweight or obese is perhaps the major predisposing factor for sleep apnea." See January 2016 Veteran correspondence. The Veteran's VA physician scheduled a sleep screening after the Veteran complained of chronic sleep impairment, "very bad" snoring, and daytime fatigue. See February 2012 VA treatment records. Subsequently, the Veteran was diagnosed with OSA in May 2012. See May 2012 VA treatment records. The Veteran is also service connected for a depressive disorder. See June 2022 rating decision codesheet. Thus, the first two elements for service connection are met. In July 2013, Dr. K.K., the Veteran's physician, noted that the Veteran's "depressive disorder contributes to his obesity and his obesity directly contributes to his OSA;" therefore, "it is more likely than not that his depression causes his OSA." See July 2013 Dr. K.K. medical note. June 2012 VA treatment records reflect Dr. K.K. noted the Veteran's psychiatric disorder "resulted in bad dietary habits and his obesity." VA treatment records around the Veteran's sleep apnea diagnosis reflect the Veteran's negative dietary habits. See, e.g., February 2012 VA treatment records ("eats too much"); October 2012 VA treatment records ("has been through a lot lately and has not been compliant with medication...does not eat regular meals"). Also in June 2012, Dr. K.K. provided a letter to VA noting the Veteran's military experiences resulted in his psychiatric disorder which "contributed to his poor lifestyle habits resulting in his obesity" with a BMI over 30 by 1999, only three years after his separation from service. See June 2012 Dr. K.K. opinion letter. Obesity may be an "intermediate step" between a service-connected disability and another claimed disability on the basis that the service-connected disability caused or aggravated obesity which then later led to the claimed disability. See Walsh v. Wilkie, 32 Vet. App. 300, 306 (2020). In order to meet the criteria, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would not have occurred but for the obesity. Id. Here, the Veteran's own physician noted his depressive disorder caused his obesity, which caused his OSA. See July 2013 Dr. K.K. medical note. The Veteran's medical record by Dr. K.K., taken as a whole, provides adequate rationale for his medial opinion. The Board finds the opinion probative as Dr. K.K. has been the Veteran's treating physician for over a decade, including during the time the Veteran's sleep apnea was first assessed. See February 2012 VA treatment records. Additionally, the March 2015 Sleep Disorders article supports his opinion, stating that obesity is the major predisposing factor in for sleep apnea. In February 2014, the Veteran received a VA examination for his OSA. There, the examiner found his OSA less likely than not caused or aggravated by his service-connected depression. See February 2014 VA examination report. As rationale, the examiner stated "sleep apnea is due to either central or obstructive origins and not related to depression, and depression does not aggravate nor impact sleep apnea nor make it worse in anyway." The VA examiner did not consider the July 2013 Dr. K.K. opinion, the March 2015 Sleep Disorders article, or discuss the possibility of the Veteran's obesity as an intermediate step between his depressive disorder and OSA. Thus, the Board finds this opinion not probative. The Board has considered the opinions of record and finds the evidence for and the evidence against the Veteran's claim is at least in relative equipoise. Therefore, giving the Veteran the benefit of the doubt, the Board finds there is competent and credible medical evidence of record establishing the Veteran's OSA was caused by his depressive disorder. Accordingly, the Board grants service connection for OSA. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Diabetes Mellitus The Veteran has diabetes. See June 1999 VA treatment records. As noted above, the Veteran is also service connected for depressive disorder which he contends caused his obesity, which caused diabetes. See June 2012 VA Form 21-526b (diabetes "secondary to...eating problems away due to service-connected depression."). In January 2016, the Veteran provided an online medically reviewed article stating that overeating and obesity create a significant risk for developing diabetes, noting "four out of five people with type II diabetes are overweight or obese." As noted above, the Board finds Dr. K.K.'s opinion probative that the Veteran's depressive disorder caused his obesity. As rationale, Dr. K.K. noted the Veteran's depression "contributed to his poor lifestyle habits resulting in his obesity." See June 2012 Dr. K.K. opinion letter. December 2012 and March 2013 VA treatment records by Dr. K.K. note the Veteran eats too much. In June 2012, Dr. K.K. opined that the Veteran's depression caused his diabetes, with obesity as an intermediate step. As rationale, Dr. K.K. noted the Veteran has been on insulin since 1999, when "his BMI...was over 30 where it remains today," and noted "his only family member with diabetes is a grandparent," ruling out genetic inheritance of the disorder. See June 2012 Dr. K.K. opinion letter. Overall, the Board finds Dr. K.K.'s opinion probative when reviewed against the record. In November 2013, a VA examiner opined that it was less likely than not the Veteran's diabetes was related to his psychiatric disorder. As rationale, the examiner noted the Veteran was diagnosed with his psychiatric disorders in 2009, but pointed out the Veteran had "an inability to hold positions and other life problems before 1995." See November 2013 VA examination report. The Board is unsure what this statement has to do with the Veteran's contention. Additionally, the examiner stated that the Veteran's "weight has increased about 15 pounds over the last fifteen years." This statement does not negate the fact that the Veteran was already obese at the time he was diagnosed with diabetes around 1999 and reflects the Veteran continued to gain weight after service. In March 2014, the same examiner provided an addendum to his November 2013 opinion, noting "depression does not cause or aggravate diabetes, since they are two different diseases...diabetes is a hormonal deficiency caused by abnormal islets of Langerhans in the pancreas and are not in any way related to depression or joint condition." Again, the examiner did not consider the Veteran's contention that his depression caused his obesity which caused diabetes, and did not address the June 2012 Dr. K.K. opinion letter or the other probative evidence of record. As such, the Board finds the opinion nominally probative. The Board has considered the opinions of record and finds the evidence for and the evidence against the Veteran's claim is at least in relative equipoise. Therefore, giving the Veteran the benefit of the doubt, the Board finds there is competent and credible medical evidence of record establishing that the Veteran's diabetes was caused by his depressive disorder. Accordingly, the Board grants service connection for diabetes. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Retinopathy, ED, and Hypertension Pursuant to the Order above, the Veteran is now service connected for diabetes, but his most recent examination regarding the nature of his diabetes was in November 2013. Although a November 2013 VA examiner noted the Veteran's ED was at least as likely as not secondary to his diabetes, and Dr. K.K. provided an October 2014 disability benefits questionnaire (DBQ) noting the Veteran's retinopathy, ED, and hypertension were due to diabetes, no rationale was provided. Additionally, the record contains August 2010 and September 2010 diabetes forms from different treating physicians noting the Veteran's retinopathy, ED, and hypertension are all complications "directly due to diabetes," but provide no rationale. See April 2016 medical records. Finally, the Veteran contends he was told he had high blood pressure in service and, alternatively, that his hypertension is secondary to his service-connected depressive disorder and musculoskeletal conditions, with obesity as an intermediate step. See December 2021 Board Hr. Tr. at 23-24. The Veteran's service treatment records (STRs) note elevated blood pressure readings. See October 1994 STRs (118/82mm; 132/70mm), and August 1995 STRs (122/86mm). As there is no opinion of record regarding these theories of entitlement to service connection, the Veteran should be afforded an examination to assess the nature and etiology of his retinopathy, ED, and hypertension. Lumbar Spine Condition The Veteran contends his lumbar spine condition started in service, specifically from the accumulative wear and tear from intense physical training and parachute jumps. See December 2021 Board Hr. Tr. at 10. Alternatively, the Veteran contends his lumbar spine condition is secondary to his service-connected knee and/or right hip conditions. Id. at 4, 10-11. In November 2013, a VA examiner opined that the Veteran's lumbar spine degenerative arthritis was less likely than not related to the Veteran's in-service airplane jumps or his overall time in the military "because his imaging does not show any impact injuries from his landings and only mild degenerative changes." An addendum opinion was provided in March 2014 stating the Veteran's lumbar spine condition was less likely than not proximately due to or aggravated by the Veteran's service-connected physical conditions of the right knee, right hip, left ankle, and left knee as "there is no severely abnormal gait that could have placed undue strain on the lumbar spine." These opinions are inadequate as they do not address any of the Veteran's lay statements of record or the medical evidence of record. For example, July 1994 STRs note the Veteran had a mildly antalgic gait, was treated for low back pain in service, and the Veteran's February 1996 separation examination noted "lower back problems" and "low back pain" for one year. See January and September 1995 STRs. Additionally, March 2013 VA treatment records reflect the Veteran sought treatment for low back pain that increased "in 2011 with knee surgery." Finally, a November 2013 letter from Dr. K.K. stated that the Veteran's "lumbar spine is caused by or a result of gait changes from the right total knee arthroscopy and history of a paratrooper." Although the November 2013 Dr. K.K. letter does not provide adequate rationale, it is positive evidence provided by the Veteran than needs to be addressed by a reviewing clinician on remand. Increased Ratings for a Right Hip Condition The Veteran contends his right hip condition is more severe than his current rating. Prior to July 9, 2017, the Veteran's right hip strain had individual 10 percent ratings for each limitation of extension and flexion, with a noncompensable rating for limitation of rotation. From July 9, 2017, the Veteran's right hip limitation of rotation was increased to 10 percent, and his limitation of extension and flexion were each reduced to noncompensable ratings. See July 2017 rating decision. The Veteran had three examinations during the appeal period. At examination, an examiner must elicit relevant information as to the Veteran's flare-ups and ask him to describe additional functional loss, if any, he suffered during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). Then, the examiner must estimate the Veteran's functional loss due to flare-ups, and with repeated use over time, based on all the evidence of record or explain why they could not do so. Sharp, 29 Vet. App. at 35. In April 2015, a VA examiner noted the Veteran had right hip flareups, but no additional functional loss was estimated. In July 2017, the Veteran stated his flareups caused increased pain "with walking, bending, and picking up things from the floor" and he was unable to complete repetitive testing due to pain. See July 2017 VA examination report. The examiner noted she could not estimate any additional functional loss with repeated use over time or during flareups without resorting to mere speculation, but did not elaborate. Id. Finally, in February 2020, the Veteran stated moderate right hip flareups occurred "every few days" and lasted "a couple of hours," often after walking. See February 2020 VA examination report. At the examination, the Veteran range of motion was unable to be tested due to pain and the examiner noted he could not provide an estimate of any additional functional loss during flareups or with repeated use over time. As such, a remand is required to afford the Veteran a proper examination. The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. After the development in #1 above is complete, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran's retinopathy, ED, and hypertension, to include as secondary to diabetes mellitus. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: (a) For each (i) hypertension, (ii) retinopathy, and (iii) ED: Is it at least as likely as not that the Veteran's current condition was (1.) caused OR (2.) aggravated by his service-connected diabetes? The examiner should consider the November 2013 VA examination noting the Veteran's ED was secondary to his diabetes; October 2014 Dr. K.K. DBQ noting retinopathy, ED, and hypertension are due to diabetes; and April 2016 medical records noting August 2010 and September 2010 diabetes forms noting the Veteran's retinopathy, ED, and hypertension are all complications "directly due to diabetes." (b) For hypertension, is it at least as likely as not the Veteran's hypertension was incurred in or is otherwise related to his time in service, to include the contention that he was told he had high blood pressure in service? The examiner should consider the following STRs noting elevated blood pressure: October 1994 STRs (118/82mm; 132/70mm), and August 1995 STRs (122/86mm). (c) For hypertension, is it at least as likely as not that the Veteran's hypertension was (1.) caused OR (2.) aggravated by his obesity? AND Is it at least as likely as not that the Veteran's obesity was (1.) caused OR (2.) aggravated by his service-connected depressive disorder and/or musculoskeletal conditions? The examiner should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles should be considered. 3. After the development in #1 above is complete, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran's lumbar spine condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: (a). Is it at least as likely as not the Veteran's lumbar spine condition was incurred in or is otherwise related to his time in service, to include the cumulative wear and tear from intense physical training and parachute jumps? The examiner should consider July 1994 STRs noting an antalgic gait, January and September 1995 STRs note treatment for low back pain, and February 1996 separation examination noted "lower back problems" and "low back pain" for one year. (b). Is it at least as likely as not (a 50 percent probability or more) that the Veteran's current lumbar spine condition was (1.) caused OR (2.) aggravated by his service-connected musculoskeletal conditions? For all opinions, the examiner should consider March 2013 VA treatment records reflecting the Veteran's low back pain "got stronger in 2011 with knee surgery," and November 2013 Dr. K.K. letter stating the Veteran's "lumbar spine is caused by or a result of gait changes from the right total knee arthroscopy and history of a paratrooper." In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After the development of #1 above is complete, schedule the Veteran for an examination to determine the severity of his service-connected right hip strain. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, precipitating and alleviating factors, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repetitive use over time. If the VA examiner finds pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups and/or with repetitive use over time, but this decrease in functional ability results in no loss of range of motion, please detail how the Veteran's functional ability is significantly limited during a flare-up and with repeated use over time. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should consider that the Veteran is competent to report his right hip symptoms and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. 5. Thereafter, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.