Citation Nr: 23015167 Decision Date: 03/14/23 Archive Date: 03/14/23 DOCKET NO. 18-48 687 DATE: March 14, 2023 ORDER Entitlement to a 10 percent rating, but no higher, for hypertension is granted from November 12, 2015. Entitlement to service connection for a bone disorder, to include osteopenia, is granted. Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for insomnia is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for hernia is remanded. Entitlement to a compensable rating for residuals of small bowel resection to include cholecystectomy and abdominoplasty is remanded. Entitlement to a compensable rating for residual scars (hysterectomy and small bowel) is remanded. FINDINGS OF FACT 1. The Veteran's hypertension manifests with a history of diastolic pressure predominantly 100 or more and requires continuous medication for control, but she has not exhibited predominant blood pressure readings of 100 or more or systolic pressure of 160 or more at any point during the appeal period. 2. The Veteran's bone disorder, to include osteopenia, is proximately due to her service-connected removal of uterus and both ovaries. 3. The Veteran's obstructive sleep apnea had its onset in service. 4. The Veteran's insomnia had its onset in service. 5. The Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent rating, but no higher, for hypertension are met from November 12, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101. 2. The criteria for entitlement to secondary service connection for bone disorder, to include osteopenia, are met. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. § 3.310. 3. The criteria for entitlement to service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for insomnia are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1972 to July 1976, February 1991 to June 1991, and November 1992 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2022, the Veteran submitted a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of a new representative, apparently in connection with a separate claim for benefits (VA Form 21-0966 Intent to File also received in November 2022). Inasmuch as the new appointment was received more than 90 days after certification, and no good cause for the late filing has been shown, the new representative will not be recognized for purposes of the present appeal. 38 C.F.R. § 20.1304(b). The Board has broadened the Veteran's bilateral hearing loss claim to encompass all ear disorders reasonably raised by the record, specifically tinnitus. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran was scheduled for a Board hearing, but she withdrew her hearing request in May 2021. 38 C.F.R. § 20.704(e). Increased Rating 1. Entitlement to a 10 percent rating, but no higher, for hypertension is granted from November 12, 2015. The Veteran seeks an increased rating for her service-connected hypertension. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the evidence demonstrates distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. By way of background, the current appeal period begins on November 12, 2015, the date VA received the Veteran's claim for an increased rating, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Board notes that the Veteran was awarded a noncompensable rating according to Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is warranted when diastolic pressure is predominantly 100 or more or when systolic pressure is predominantly 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control; a 20 percent rating is warranted when diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more; a 40 percent rating is warranted when diastolic pressure is predominantly 120 or more; and a 60 percent rating is warranted when diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. For the reasons that follow, the Veteran's hypertension has more nearly approximated the criteria corresponding to a 10 percent rating, but no higher. Turning to the medical evidence at hand, the Veteran attended a VA hypertension examination in April 2016. The examiner noted that the Veteran takes medication for her hypertension, and recorded blood pressure readings of 132/78, 140/85, and 138/84. The examiner indicated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more; however, the examiner also determined that the Veteran was initially placed on medication for hypertension at service separation in 1997, and that November 1995 blood pressure readings were recorded at 140/100 on 3 days and 132/100. These findings, before the Veteran began medication for hypertension, are demonstrative of a history of diastolic pressure predominantly 100 or more and support a 10 percent rating over the appeal period. See Wilson v. McDonough, 35 Vet. App. 75, 79 (2021) (Under DC 7101, "a history of diastolic pressure predominantly 100 or more [that] requires continuous medication for control" refers to blood pressure readings taken before a veteran began medication to control hypertension, and therefore may require analyzing blood pressure readings prior to the period on appeal). A rating in excess of 10 percent is not warranted, as the Veteran's has not evidenced diastolic pressure at 110 or more or systolic pressure at 200 or more at any point during the appeal period. In this regard, the Veteran submitted blood pressure readings from April 2015 with a note indicating that these readings were taken when she was not on medication. On April 20, 2015, the Veteran's blood pressure readings were as follows: 127/76, 127/76, 115/85, 139/73, 163/99. VA treatment records show blood pressure readings of 124/88 (May 2017); 112/62 (November 2017); 106/73 (June 2018). Private treatment records show blood pressure readings of 119/76 in September 2020 and 126/84 in April 2021. February 17, 2021 private treatment records show blood pressure readings of 122/72, 107/70, 130/75. February 27, 2021 private treatment records show blood pressure readings of 123/84, 104/68, 102/68, 145/91. In sum, the Board finds that a 10 percent rating, but no higher, is warranted over the appeal period. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of 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 claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 2. Entitlement to service connection for a bone disorder, to include osteopenia is granted. The Veteran seeks service connection for a bone disorder, to include osteopenia, as secondary to her service-connected removal of the uterus and both ovaries. Initially, the Board notes that VA and private treatment records document a current diagnosis of osteopenia. See May 2017 VA treatment record; July 2015 private treatment record. In August 2016, the Veteran's treating physician, Dr. C.S.R., opined that the Veteran's in-service removal of both ovaries caused early menopause that then caused osteopenia. Dr. C.S.R. explained that estrogen deprivation is the most profound risk factor for osteopenia. There is no evidence to the contrary. Thus, the Board concludes that the criteria for service connection for a bone disorder, to include osteopenia, as secondary to removal of the uterus and both ovaries, are met. 38 C.F.R. § 3.310. 3. Entitlement to service connection for obstructive sleep apnea is granted. 4. Entitlement to service connection for insomnia is granted. The Veteran asserts that her obstructive sleep apnea and insomnia had their onset in service. Specifically, the Veteran reports that sleep apnea was not routinely tested in service, but that she evidenced sleep impairment and only slept two hours at night during service. See October 2018 statement. Initially, the Board notes that the Veteran has current diagnoses of obstructive sleep apnea and insomnia. See December 2013 sleep study; April 2016 VA treatment record; April 2016 VA examination report. Further, the Veteran complained of insomnia in 1997. Thus, the first and second elements of service connection are established. Regarding the last element, nexus, in August 2016, Dr. G.B., the Veteran's treating otolaryngologist, albeit briefly, opined that her sleep apnea had its onset in service. In April 2020, Dr. J.L.A., also an otolaryngologist, explained that the specialty of sleep medicine is still relatively new and therefore it is unsurprising that the Veteran was not diagnosed with sleep apnea in service, although she displayed symptoms while on active duty. Thus, Dr. J.L.A opined that it is more likely than not that the Veteran's sleep apnea and chronic insomnia began while she was on active duty. During the April 2016 VA examination, the Veteran reported difficulty falling asleep, trouble staying asleep, waking up to catch her breath, snoring, and waking up gasping beginning in the 1970's. In providing a negative nexus opinion, the April 2016 examiner opined that the Veteran complained of trouble sleeping since the 1970s. Further, the examiner explained that although there was no diagnosis of sleep apnea in the Veteran's service treatment records her current symptoms could as easily have described sleep apnea before enlistment as the Veteran reported trouble sleeping dating back to the 1970s. It is unclear if the examiner was informed that the Veteran's active service began in 1972. Thus, the examiner's rationale supports a positive nexus to service. A remand for clarification would constitute development of negative evidence and the Board as a matter of course does not develop for negative evidence solely to deny a claim. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 151 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim.") As there are no competent contrary opinions of record, service connection is warranted for insomnia and obstructive sleep apnea. 5. Entitlement to service connection for tinnitus is granted. Certain chronic disabilities, including tinnitus, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran relates her tinnitus to her exposure to in-service acoustic trauma, namely loud dental instruments, to include drills. Here, the Veteran has a current diagnosis of tinnitus. She has competently reported tinnitus in her lay statements and to a VA examiner. In this regard, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the first element of service connection has been met. Regarding the second and third elements, in-service incurrence of the injury and nexus, the Veteran's service treatment records (STRs) note occasional tinnitus in February 1991. In March 1991, the Veteran reported hearing "clickety-clack" when she ran. Further, the Board finds that her reports of noise exposure are consistent with the circumstances of her service and her military occupational specialty as a dental hygienist. 38 U.S.C. § 1154(a). Also, the Veteran has competently and credibly reported that she has continued to experience recurrent ringing in her ears during and since service, coincident with her duties. See April 2016 VA examination report. Thus, the Board finds her assertions that tinnitus was first incurred in service and has been present continuously since service credible. As such, the second and third elements of service connection are established. The Board notes that the April 2016 VA audiologist opined that the Veteran's tinnitus was less likely than not due to military service. However, the examiner failed to address the Veteran's in service complaints of tinnitus and did not consider her competent and credible reports regarding the onset of tinnitus in service and continual symptoms ever since. Thus, this opinion is afforded no probative value, and service connection is established. REASONS FOR REMAND 6. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that her bilateral hearing loss is related to her military duties as a dental hygienist. In this regard the Veteran reported that her job required her to be around dental drills for eight hours a day. The Veteran was afforded a VA hearing loss examination in April 2016. However, the Board finds that the April 2016 VA examiner's unfavorable nexus opinion is inadequate. Specifically, the examiner's citation to the Institute of Medicine (IOM) study is misleading, as she does not address the full extent of the report's findings pertinent to the matter. In this regard, while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure as she states, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." (IOM report at 203-04.) The examiner did not address this favorable aspect of the IOM report in her findings. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). Thus, because the April 2016 VA opinion was based on an inaccurate factual premise and did not fully contemplate the IOM study, it is of no probative value. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding that medical opinions based on inaccurate factual premise have no probative value). Thus, an addendum opinion must be obtained on remand. 7. Entitlement to service connection for hernia is remanded. The Veteran asserts that her hernia is secondary to her service-connected residuals of small bowel resection. Private treatment records show diagnosis of right inguinal hernia in July 2013, followed by excision in April 2017. The Veteran is service-connected for residuals of small bowel resection. The Veteran has not yet been afforded a VA examination to determine the nature and etiology of her hernia. In light of the foregoing, the Board finds that a VA examination should be obtained on remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 8. Entitlement to a compensable rating for residuals of small bowel resection to include cholecystectomy and abdominoplasty is remanded. The Veteran submitted private treatment records indicating abdominal surgery as a result of a small bowel obstruction in February 2021. As such, the Board finds that a new examination should be provided in order to assess the current nature and severity of her residual small bowel resection. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 9. Entitlement to a compensable rating for residual scars is remanded. Regarding the Veteran's claim for a compensable rating for residual scars associated with her small bowel resection, the Veteran asserts that she has pain and numbness. See January 2016 statement. Notably, on the April 2016 VA examination, the examiner found that there were no pertinent physical findings, complications, conditions, signs, or symptoms associated with any scar. However, as the Board is remanding the issue of an increased rating for residuals small bowel resection for a new VA examination, the Board also finds that a remand is necessary when assessing the current severity of the scars in order to also to determine whether the Veteran has a nerve disability secondary to her scars. Finally, updated VA treatment records should be secured on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Obtain addendum opinion, from an examiner other than the April 2016 examiner as to the etiology of the Veteran's bilateral hearing loss. The claims file should be made available to and reviewed by the examiner. The examiner should opine on the following: (a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral hearing loss is etiologically related to service, to include her conceded exposure to excessive noise in service as a dental hygienist, her complaint of hearing "clickety-clack" when she runs in March 1991, and her report of ear trouble in her June 1992 Report of Medical History? In addressing this question, the examiner should discuss: (i) the Veteran's conceded in-service exposure to excessive noise related to her MOS; (ii) the Veteran's statements that she has experienced continuous hearing loss since service; (iii) the Veteran's statements that she experiences hearing loss due to longterm exposure to dental drills with constant high pitch sounds, eight hours a day; and (iv) the article entitled "Can you hear me now?" submitted on October 11, 2016. (b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral hearing loss manifested to a compensable degree within one year after separation from service? (c) Please have the examiner address the IOM Report on noise exposure in the military (cited as authority in the April 2016 VA medical opinion), which states that it is "unlikely" that the onset of hearing loss begins years after noise exposure occurs, but also states that: (1) "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure;" (2) "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure;" and (3) "definitive studies to address this issue have not been performed." A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of her hernia. The entire claims file should be made available to the examiner. All findings should be reported in detail. After a review of the claims file, the examiner should address the following: Please opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hernia (excised in April 2017) (1) is proximately due or (2) aggravated (worsened) by her service-connected disabilities, to include residuals of small bowel resection. In addressing these questions, the examiner must address the Veteran's lay statements and is advised that the small bowel resection need not be service-connected or even diagnosed at the time the hernia is incurred and reliance on this fact will render the opinion inadequate. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 5. Schedule the Veteran for an examination to determine the current severity of her residual small bowel resection disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should be asked to review the claims file, including VA medical records and the private medical records received in May 2021. The examiner should also note any neurological residuals found on examination or reported by the Veteran and, if necessary, additional examinations should be scheduled to further probe such manifestations. See January 2016 statement (Veteran reports scar numbness); October 2018 statements (adhesions pull at the waistline). The examiner MUST IDENTIFY all involved nerves and the severity of the involvement, if indicated. They must also comment on the approximate date or time of onset for any differing or new degrees of neurological impairment based on a review of relevant medical records and consideration of the Veteran's own competent subjective history and report. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.