Citation Nr: 23022697 Decision Date: 04/18/23 Archive Date: 04/18/23 DOCKET NO. 19-07 708 DATE: April 18, 2023 ORDER An initial compensable disability rating for right ear hearing loss is denied. Service connection for left ear hearing loss is granted. Service connection for a bilateral foot condition, manifested by pes planus, plantar fasciitis, hallux rigidus, calcaneal heel spur, and hallux valgus, is granted. REMANDED A disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). Service connection for sleep apnea. FINDINGS OF FACT 1. The Veteran's right ear hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than a presumed Level I in the nonservice-connected left ear. 2. The evidence of record persuasively weighs against finding that the Veteran has had a left ear hearing impairment meeting VA's definition of a disability at any time during or approximate to the pendency of the claim. 3. The Veteran's bilateral foot conditions, including pes planus, plantar fasciitis, hallux rigidus, calcaneal heel spur, and hallux valgus, were incurred in service or caused by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for service connection for a bilateral foot condition, manifested by pes planus, plantar fasciitis, hallux rigidus, calcaneal heel spur, and hallux valgus, have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to September 1978, from October 2001 to October 2002, and from July 2003 to June 2004. He also served in the National Guard. The case is on appeal from a January 2015 rating decision. The RO developed and adjudicated the issue involving service connection for foot condition as entitlement to service connection for plantar fasciitis. The Board has broadened the issue on appeal to now include any foot condition. This recharacterization of the issue is needed in light of subsequently developed evidence demonstrating that the scope of this claim is much broader than originally defined by the RO. Accordingly, the Board has recharacterized the issue involving service connection. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. An initial compensable disability rating for right ear hearing loss The Veteran is seeking a higher initial rating for right ear hearing loss. The appeal period now before the Board begins in December 2014, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a noncompensable (0 percent) rating throughout the entire appeal period. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The question for the Board is whether the Veteran's right ear hearing loss disability has been manifested by a compensable disability level. The Board finds that a compensable disability level is not more nearly approximated. A December 2014 VA examination reveals that the Veteran reported trouble hearing his wife, difficulty hearing in large groups, and with background noise. He found it embarrassing to have to say "what" all the time. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 10 15 40 20 98 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear (as presumed for purposes of this issue only). Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Board is mindful that the only relevant evidence of record consists of the December 2014 VA examination. The Board finds that no further development is needed because there has been no contention or indication that the hearing loss disability has materially worsened since the December 2014 VA examination. As there is no indication that the December 2014 VA examination does not reflect the current state of the condition, remand for a new VA examination is not needed. See Payne v. Wilkie, 31 Vet. App. 373, 390 (2019). To conclude, the most probative evidence of record persuasively weighs against the claim of entitlement to a compensable rating for hearing loss. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Service Connection 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. §§ 1110, 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)). Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Active service includes periods of active duty for training (ACDUTRA) when service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Active service also includes periods of inactive duty training (INACDUTRA) when service connection may be granted for disabilities resulting from an injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C. § 101(23), (24); 38 C.F.R. § 3.6(a), (d). 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 left ear hearing loss The Veteran is seeking service connection for left ear hearing loss. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the Board concludes that the Veteran does not have a current diagnosis of left ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran underwent a VA audiological examination in October 2008. His auditory thresholds upon puretone audiometry testing were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 5 5 0 15 Speech recognition scores were 98 percent left ear. The Veteran underwent a second VA audiological examination in December 2014. His auditory thresholds upon puretone audiometry testing were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 15 15 10 15 Speech recognition scores were 100 percent left ear. Because auditory thresholds at both of these examinations were not 40 decibels or greater in any of the frequencies, or 26 decibels or greater in at least three of the frequencies, and because the speech recognition scores were not less than 94 percent, a current hearing loss disability for VA purposes is not established. See 38 C.F.R. § 3.385. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (internal citation omitted). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). While the Veteran believes he has a current diagnosis of hearing loss in the left ear, he is not competent to provide a diagnosis in this case. The issue is medically complex as it requires specific audiometric testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). It is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to conduct or interpret such testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examination results. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for left ear hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for a bilateral foot condition, to include plantar fasciitis The Veteran is seeking service connection for a bilateral foot condition. He wrote in his September 2008 claim that he was treated during service with an initial presentation in 2001. The Board observes that the Veteran is separately service-connected for degenerative joint disease and gout first metatarsophalangeal joints of the right and left foot. He is also service-connected for degenerative joint disease and gout of each ankle. These disabilities are not within the scope of this claim. However, these disabilities are relevant as the file reasonably raises a secondary theory of entitlement. The evidence of record confirms current diagnoses of pes planus (flat foot) and plantar fasciitis. A January 2005 VA Orthopedics consultation reflects diagnoses of pronation of each foot with some hallux rigidus of the MTP joint of each great toe, and plantar fasciitis bilaterally. A January 2005 VA Podiatry consultation reflects a diagnosis of calcaneal spur bilateral. A January 2015 VA foot examination diagnosed flat foot bilaterally, and plantar fasciitis. An April 2018 VA examination diagnosed flat foot and hallux valgus. VA Podiatry consultations in January 2005 and April 2006 diagnosed calcaneal spur bilaterally. The Veteran maintains that the initial presentation of his foot condition was during his active duty in 2001. The service treatment records (STRs) contain numerous complaints involving the ankles and toes. This is the basis for the award of service connection for those disabilities. Otherwise, the STRs during the active duty periods from June 1978 to September 1978, from October 2001 to October 2002, and from July 2003 to June 2004, are negative for any other foot involvement. During his deployment from October 2001 to October 2002, he was treated in May 2002 for complaints of swollen left foot, big toe joint, and ankle, which was assessed as rule out gout. He injured his ankle in a May 2002 accident. He was seen in May 2002 for possible gout, including first MTP joint pain. In June 2002, he complained of inability to sleep secondary to pain and a tight feeling in his toes. A September 2002 Report of Medical History shows that he endorsed a history of foot trouble, but identified the broken left ankle. The September 2002 Report of Medical Examination noted "Normal Arch" and "Asymptomatic" feet. This is affirmative evidence that a foot condition did not begin in 2001. During the intervening years, the Veteran served periods of ACDUTRA and INACDUTRA. Of particular relevance, a February 2003 service department Orthopedic consultation for the ankles appears to include a diagnosis of flat foot. (The handwriting is somewhat difficult to read.) This diagnosis would have been between his second and third periods of active duty. In April 2003, shortly before his entrance into active duty in July 2003, he underwent a Deployment Report of Medical Examination. The examiner marked the Veteran's feet as "normal." The examiner found that the Veteran was nondeployable until cleared by Orthopedics for an elbow and foot condition. The Board finds that this examination is consistent with an entrance examination. To this end, because it does not note flat foot or any other foot condition, the Board finds that the presumption of soundness attaches. This presumption is not rebutted because there is not clear and unmistakable evidence that the condition preexisted this period of service and was not aggravated therein. The February 2003 VA Orthopedic evaluation notated flat foot, so this is evidence the condition existed prior to this period of service. However, the presumption cannot be rebutted because there is not clear and unmistakable evidence that condition was not aggravated during the subsequent period of active duty. During his deployment, the Veteran was seen in April 2004 for complaints of left foot pain for three days. The assessment was "H[istory] of gout." The Board finds that this STR is some evidence of symptoms during this period of duty. It noted the history of gout not pes planus, but this does not exclude the possibility that pes planus was also involved in causing the foot pain; it is too nonspecific to make definitive conclusion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Then, at a May 2004 Post-Deployment Health Assessment, the Veteran marked that his health stayed about the same or got better during the deployment. He endorsed numbness or tingling in the hands or feet, and denied swollen, stiff or painful joints, and muscle aches. This is also not affirmative evidence either way as the examiner provided no further details. The numbness or tingling in the hands or feet could refer to pes planus symptoms; it is not clear and unmistakable that it does not. More recently, a VA examiner in April 2018 observed that medical literature supports that degenerative changes in the feet and ankles as well as abnormalities of the ankles can result in acquired pes planus. Overall, this VA examiner's opinion indicates that the pes planus condition may have been aggravated during this period of service. The opinion is imprecise to the extent it does not indicate when the causation might have occurred. However, because the Veteran had degenerative changes in this feet by that time, with pes planus also extant, this VA examiner's opinion tends to at least indicate the possibility that this occurred. Overall, the Board finds that it is not clear and unmistakable that the condition was not aggravated during this period of service. For this reason, the condition is deemed to have been incurred during this period of active duty. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012) (noting that such a finding establishes the second element of service connection), aff'd 749 F.3d 1370 (Fed. Cir. 2014). There is no material dispute that the current pes planus diagnosis is the present manifestation of that same condition. Hence, service connection for pes planus is warranted. With regard to the remaining diagnoses, the April 2018 VA examiner also explained that hallux limitus is a new diagnosis and a progression of the previous diagnosis and is related to the DJD. The examiner observed that medical literature supports that gout and pes planus can cause hallux limitus, and the medical literature supports that bilateral pes planus can place a person at a higher risk of developing hallux valgus. The Board finds this VA examiner's opinion probative evidence establishing that the hallux limitus diagnosis is secondary to the service-connected disabilities. With regard to plantar fasciitis, the January 2005 Orthopedics consultation, which diagnosed the condition, noted the Veteran's complaints of pain in the ankles and the balls of the feet aching all the time, which trouble he had had for 10 years or longer, most recently in Afghanistan. Then, a VA provider wrote a supporting letter in July 2006, noting that the Veteran had chronic ankle and foot pain following fractures to both ankles, the right in 1993 and the left in 2001, and subsequent arthritis and plantar fasciitis. This evidence does not probatively place the onset of plantar fasciitis during any period of active duty. The January 2005 Orthopedics diagnosis was within one year of his June 2004 separation, but this is not a presumptive condition. His complaints of symptoms for 10 years in January 2005 might place the onset to approximately 1995, but this would not have been during a period of active duty. It is also too imprecise to indicate a preexisting condition at his entrance onto active duty in either October 2001 or July 2003 as it represents his own account of his history. Moreover, his account is conflated by complaints involving the ankles, which did indeed exist for many years prior. The Veteran's own statement is not the type of evidence that may establish the condition clearly and unmistakably preexisted service as it was not, for example, an admission during clinical evaluation during a period of active duty indicating pre-service history of symptoms. See Paulson v. Brown, 7 Vet. App. 466 (1995); see also Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). Thus, the presumption of soundness is not invoked for this condition. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014) (the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service). The Board observes that a VA examiner in January 2015 opined that the condition was less likely than not incurred during service because the STRs lack objective medical evidence to support a diagnosis of plantar fasciitis incurred in or caused by active duty that occurred in 2003. This opinion is not especially probative as it relied on an absence of evidence. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Nonetheless, it is some further evidence that the condition was not incurred during this period of active duty. Ultimately, however, the Board finds that service connection is warranted because the evidence, especially the July 2006 VA provider's letter, tends to indicate that the condition is secondary to the service-connected disabilities in the ankles. Accordingly, service connection is warranted. This evidence does not show that the heel spur was incurred in service, but a July 2013 VA Podiatry consultation noted the heel spur and diagnosed plantar fasciitis. This tends to indicate that the heel spur condition is a component of the plantar fasciitis. Accordingly, the evidence is persuasively in favor the claim. As there is an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is applicable and service connection is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. A disability rating in excess of 50 percent for PTSD. The Veteran was last examined by VA for PTSD in December 2014. Since that time, he was not treated by VA for the condition, and there is no indication of private (non-VA) treatment. He declined a referral for treatment at VA in February 2020. The Board finds that the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the disability. The December 2014 VA examination notes that he had no panic attacks, but the February 2020 VA medical record states he was having panic attacks. Related, the December 2014 VA examination stated he was married with a "fair" relationship. An August 2017 VA medical record indicated that he was separated. This evidence indicates a potential material worsening of the condition. Therefore, a new VA examination is needed. 2. Service connection for sleep apnea. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran may have sleep apnea related to service or a service-connected disability, including whether obesity may be an intermediate step. The service treatment records (STRs) indicate a diagnosis of obesity. And, the Veteran reported during a September 2002 Report of Medical History that he had gained 30 pounds of weight to inactivity because of a left ankle injury. Relatedly, he voiced complaints during VA treatment in June 2013 that he had been unable to exercise due to joint pain, including the right foot and right hip. The Veteran's wife also wrote a supporting letter in June 2012 indicating that they were married in June 2002, when the Veteran was home on leave from a deployment. She wrote that that is when she probably first noticed his heavier breathing, loud snoring, and long pauses between breaths. She wrote that the symptoms worsened in 2004 upon his return from Afghanistan when he started gasping and choking in his sleep. He also began to toss and turn all night. VA sent him an at-home test, which came back negative, but they were not even certain the machine worked properly. Later, she maintained, he underwent a proper sleep test, which confirmed the diagnosis. She also wrote in a January 2006 statement that she almost did not recognize him when he returned from deployment. He was twice the size he was when he left home, and he had been struggling to lose weight ever since. This evidence tends to relate weight gain due to an ankle injury. Remand is needed to address the complex medical questions raised by this evidence. Relatedly, the VA records indicate that the initial sleep apnea diagnosis was made at a private facility. These records are not in the file, but appear relevant, so should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private (non-VA) providers or facilities who may have additional medical records, including a sleep study conducted at Pembrook. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected PTSD. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed sleep apnea. The examiner is asked to provide a response to the following: (a.) Is the condition at least as likely as not related to service, including the contention that the Veteran gained weight due to inactivity after a broken ankle during service? (b.) Was the condition at least as likely as not caused by (i.e., proximately due to) a different medical condition? (c.) Has the condition been at least as likely as not aggravated (i.e., worsened beyond its natural progression) by a different medical condition? If it is determined that the condition was either caused or aggravated by a different medical condition, the examiner is asked to identify the primary medical condition. (d.) In answering questions (a) through (c), the examiner must consider whether obesity was an "intermediate step" between a service-connected disability(ies) and the Veteran's secondary condition. The examiner must affirmatively respond to each of the following questions: i. Whether it is at least as likely as not that service, including inactivity due to an ankle injury, or any service-connected disability(ies), caused or contributed to his obesity; ii. If so, whether it is at least as likely as not that the obesity was a substantial factor in causing the sleep apnea condition; and iii. If yes, whether the sleep apnea condition would not have occurred but for obesity. In answering these questions, the examiner is asked to consider the statements from the Veteran and his spouse regarding his history of symptoms during and since service. The examiner is asked to explain why their statements make it more or less likely that the current condition is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.