Citation Nr: 23054075 Decision Date: 09/28/23 Archive Date: 09/28/23 DOCKET NO. 20-09 778 DATE: September 28, 2023 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for sleep apnea is granted. Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a back disability, to include degenerative disc disease (DDD) and thoracic spine muscle spasms, is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for urinary incontinence is remanded. FINDINGS OF FACT 1. There is no competent medical evidence that the Veteran has a bilateral hearing loss disability for VA compensation purposes. 2. The Veteran's sleep apnea is etiologically related to his active service. 3. Throughout the appeal period, the Veteran's PTSD more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1112 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2022). 2. The criteria for entitlement to sleep apnea have been met. 38 U.S.C. §§ 1110, 1112 (2018); 38 C.F.R. §§ 3.303, 3.307. 3.309 (2022). 3. The criteria for an initial 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marines Corps from November 2010 to December 2011, with additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). Service Connection - Bilateral Hearing Loss Disability The Veteran contends that he has a bilateral hearing loss disability which is related to his in-service noise exposure, conceded on the record. Service and post-service medical records are unremarkable for any complaints, treatment, or diagnosis for decreased hearing acuity during service which satisfies the criteria for a disability for VA purposes. See 38 C.F.R. § 3.385. In October 2016, the Veteran was afforded a VA audiological examination. The VA audiologist found that the Veteran had normal hearing in both ears and thus, did not meet the diagnostic criteria for a bilateral hearing loss disability for VA purposes. Id. In order for a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There are specific requirements as to what constitutes hearing loss for VA compensation purposes, and as noted, there is no indication from the record that the Veteran has decreased hearing acuity consistent with those requirements. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Veteran is competent to identify reduced hearing acuity, he is not competent to provide a diagnosis for VA purposes, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hence, the Board gives more probative weight to the competent medical evidence. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence weighs persuasively against the claim and is not in approximate balance. Therefore, entitlement to service connection for bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Service Connection - Sleep Apnea The Veteran asserts that his sleep apnea is related to his active service. Specifically, he reported that fellow Marines observed that he ground his teeth, stopped breathing, and snored loudly while sleeping during service, to include a documented incident in July 2008. Alternatively, the Veteran claims that his sleep apnea is secondary to his service-connected PTSD. STRs confirm that the Veteran reported that one of his colleagues woke him up because he stopped breathing and was snoring loudly during his sleep in July 2008. In July 2008, the Veteran complained of a history of being constantly tired and nighttime awakenings. Additionally, the Veteran reported problems sleeping or still feeling tired after sleeping at his post-deployment health assessment (PDHA) in August 2011. Regardless, the Veteran is competent to report the onset and continuity of symptoms associated with sleep apnea from his first period of active service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran credible in that respect. VA medical center (VAMC) records showed that the Veteran complained of insomnia and sleep problems in August 2012. A VAMC physician diagnosed the Veteran with sleep disturbance of unknown etiology and recommended a sleep study. In December 2015, the Veteran underwent a sleep study and was diagnosed with obstructive sleep apnea (OSA). In October 2016, the Veteran was afforded a VA examination. However, the AOJ did not obtain an opinion on the Veteran's entitlement to service connection on a direct basis. Nonetheless, the Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify symptoms associated with OSA and report on the chronicity of symptomatology since his first period of active service. Moreover, his statements have been found credible. In sum, the Veteran has competently and credibly reported that his OSA had its onset during his first period of active service and has continued since that time. Although the Veteran was not formally diagnosed with OSA within one year following his first period of active service, there is competent lay evidence that the Veteran was experiencing apneic events during and within one year of his first period of active service. In light of the grant of the Veteran's claim on a direct basis, the Board finds it unnecessary to address the Veteran's alternative theory of entitlement to service connection on a secondary basis. Accordingly, the Board finds that the evidence for and against the claim is in approximate balance. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107(b); Lynch, 21 F.4th 776. Increased Rating - PTSD The Veteran has contended that his PTSD is worse than that contemplated by the currently assigned 30 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. In May 2015, the Veteran presented for an initial VAMC psychiatric evaluation. He endorsed trauma exposure to death and serious injury, extensive intrusion symptoms (intrusive and recurrent memories, nightmares, physiological arousal to traumatic reminders), avoidance symptoms, distorted negative beliefs about himself and the world, alterations in arousal and reactivity (irritability, easily startled, and hypervigilance), severe insomnia, feelings of helplessness, low mood, isolation, fatigue, depression, anhedonia, lack of energy, anxiety, excessive worrying, and problems with memory/concentration/attention. He denied any suicidal or homicidal ideations. He worked full-time as head of security for local firm. He reported that his work life had been significantly harmed by his anxiety, hypervigilance, and irritability. He noted that his supervisors had questioned his tendency to engage in safety-seeking behaviors during meetings and had indicated that he would need to "'calm down'" to save his job. He lived one mile from his workplace, and either walked or took an Uber to avoid driving himself due to extreme hyperarousal symptoms. At a VAMC psychiatric evaluation in October 2015, the Veteran described workplace difficulties secondary to hyperarousal and trauma-related intrusions. Additionally, he reported isolating at home and not keeping work commitments in November 2015. In March 2016, the Veteran attended a VAMC psychiatric session following the death of his foster dad. He reported that he was very close to his dad. He stated that his nightmares had increased in frequency and were much more vivid. He related that he awakened that morning from a nightmare and grabbed his girlfriend by the neck until she touched his face. The Veteran began encouraging his girlfriend to say his name or touch his foot when she wakened him. In October 2016, the Veteran was afforded a VA examination. He had never been married. He did not have any children. He reported that he was currently dating and living with his "female friend" but indicated that they had many issues due to his symptoms. He added that he did not have an emotional connection with others. He stated that he "tried" to stay in contact with family but was not in contact with them at the time. He denied having any friends or acquaintances. He commented that he could not be around unfamiliar people or in unfamiliar places. He was employed as a safety coordinator and worked in solitary on a solar site. He reported a history of aggression. Additionally, he endorsed depressed mood, anxiety, suspiciousness, irritable behavior and angry outbursts, chronic sleep impairment, hypervigilance, avoidant behavior, intrusion symptoms, negative alterations in cognitions and mood, and problems with concentration. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. At a VAMC mental health consultation in November 2016, the Veteran complained of continued anger and anxiety. He reported that he was recently approved to work from home because he did not work well in an office environment. He recalled co-workers rearranging the furniture in the office and '"losing it.'" He reported jumping out of his rolling car in 2012 to confront a man that was staring at him at a gas station. He endorsed hypervigilance, easy startle, irritability, nightmares, flashbacks, guilt, problems sleeping, and low appetite. He felt emotionally detached form others including his "female friend." He has no interest in sex with her or anyone else. He felt anxious and worry because his job was probably in jeopardy since traveling induced anxiety and set him off. He added that he could not do much for his job working from home. Between 2017 and 2019, the Veteran endorsed depression, anxiety, easy startle, hypervigilance, irritability, isolative behavior, low appetite, low energy, problems sleeping, nightmares. He continued to work from home. He required assistance with managing his medications. At a November 2019 VAMC psychotherapy session, he reported difficulties with feeling overwhelmed, dealing with driving-related stresses, anger, and impulsivity. He became tearful when speaking about his difficulties readjusting to civilian life. Additionally, he shared that nine of his friends had taken their own lives since returning from deployment in 2011. He described feeling burdened and weighed down by his stressors. He stated that he could not talk about the things that had happened. He reported that his PTSD symptoms had severely impacted his work performance, his ability to drive to work, concentrate, and dealings with others. He reflected on having low motivation to participate in activities he once enjoyed and "normal" activities that he had not been able to engage in due to his fear that "someone might try to do something." He expressed fear about how he may react to another person. A review of the Veteran's medical records reflected that he has received additional VAMC mental health treatment since 2019. Additionally, the Veteran reported daily panic attacks, impaired impulse control, verbal outbursts, difficulty interacting and working with others, and difficulty remembering dates. However, there is no indication from the record that the Veteran's symptoms were manifestly different than those already described above. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to a higher 70 percent rating throughout the appeal period. In this regard, the Veteran is considered to have occupational and social impairment with deficiencies in most areas due to such symptoms as difficulty in adapting to stressful circumstances (including work or a work-like setting), impaired impulse control (such as unprovoked irritability with periods of violence), and inability to establish and maintain effective relationships. Therefore, the Board finds that when the Veteran's disability picture is considered as a whole, it is apparent that the Veteran's symptoms more closely approximate those contemplated by a 70 percent rating. As such, an initial 70 percent rating for PTSD is warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that the results of the October 2016 VA examination report and VAMC mental health records do not indicate that the Veteran has experienced all the symptoms associated with a 70 percent rating. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is occupational and social impairment sufficient to warrant a 70 percent rating even though all the specific symptoms listed for that rating are not manifested. Consideration has been given to assigning a higher 100 percent rating for the Veteran's PTSD. However, there is no indication from the record that the Veteran had total occupational and social impairment. There is no evidence that the Veteran was disoriented or had gross impairment in thought processes, communication, or memory. The Veteran exhibited no delusions or hallucinations. Although the Veteran became irritable/angry and had an incident of grabbing his girlfriend's neck during a nightmare, he was not in persistent danger of hurting self or others. Furthermore, the Veteran's behavior was not characterized by VAMC psychiatrists as grossly inappropriate. Although he required assistance with psychotropic medication management, there is no evidence that the Veteran neglected his personal appearance and hygiene or had an inability to perform activities of daily living. Moreover, the October 2016 VA examination report did not reflect an assessment of total social and occupational impairment. Therefore, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. 38 C.F.R. §4.130, Diagnostic Code 9411. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND As an initial matter, the Veteran's career retirement credit record shows that he had additional points or periods of ACDUTRA and INACDUTRA other than from May 2006 to April 2007, and November 2010 to December 2011. However, the precise dates of this service are not indicated. Furthermore, the Veteran's claimed injuries have not been verified by a properly executed line of duty determination. As such, the Board finds that further development is needed to clarify the Veteran's periods of qualifying service. Service Connection - Back Disability & Radiculopathy, Right and Left Lower Extremities The Veteran contends that his back disability, to include DDD and thoracic muscle spasms, is related to his active service. Specifically, he reported that he began experiencing back pain during basic physical training (PT) in 2006. He related that he injured his back carrying a 75-pound pack performing PT exercises. Further, he stated that he reinjured his back while carrying another Marine during combat fitness training in 2010. The Board has expanded the Veteran's claims to include any currently present back disability, as reflected above. Clemons v Shinseki, 23 Vet. App. 1 (2009). Service treatment records (STRs) documented that the Veteran injured his back lifting a pack from a bent over position on November 30, 2008, and prior to a period of ACDUTRA in December 2008. At an August 2011 PDHA, the Veteran reported that he was still bothered by back pain. In October 2016, the Veteran was afforded a VA examination. The examiner opined that the Veteran's back disability was less likely than not incurred in or caused by his active service. In support of this opinion, the examiner noted that the Veteran was first evaluated in December 2008 due to a referral to assess his fitness for active service. The examiner referenced the STR notation that the Veteran experienced a sudden onset of back pain after lifting a pack from a bent position in November 2008. Te examiner stated that it appeared to be a self-limiting back strain that was treated conservatively without additional evaluation for back symptoms for the next four years. The examiner found no STR evidence related to the Veteran's back during his second period of active service. The Veteran found medical evidence of chronic back symptoms from September 2012 to present for which he has required ongoing evaluation and treatment. The Board finds that the October 2016 VA medical opinion is inadequate for adjudication purposes. In this regard, the examiner did not address the Veteran's statements regarding his initial back injury in 2006 and reinjury to his back in 2010. The examiner overlooked the Veteran's report that he was still bother by back pain during his second period of active service. Furthermore, the examiner did not apply the requisite standard for aggravation of a pre-existing disability. Therefore, an addendum VA medical opinion is warranted. The Board notes that the October 2016 VA examiner found, in part, that the Veteran's right and left lower extremity radiculopathy were as least as likely as not proximately due to or the result of the Veteran's back disability. As such, the Board finds that those claims are inextricably intertwined with the issue of entitlement to service connection for a back disability remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (19910 (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Service Connection - Urinary Incontinence The Veteran asserts that his urinary incontinence is related to his active service. Specifically, he reported that he experienced urinary incontinence when he injured his back during combat fitness training in 2010. STRs revealed that the Veteran was placed on a light duty profile due to an episode of incontinence while lifting a military pack in December 2008. In October 2011, the Veteran reported another episode of incontinence. He added that he had a history of incontinence since his back injury approximately three years prior to October 2011. Additionally, he stated that he experienced one episode of urinary incontinence when he was bending over three weeks prior to January 8, 2013. In October 2016, the Veteran was afforded a VA examination. However, the examiner did not provide an opinion for entitlement to service connection on a direct basis. Therefore, an addendum VA medical opinion is warranted. The matters are REMANDED for the following action: 1. Verify the Veteran's dates of qualifying service other than from May 2006 to April 2007 (noted on the DD Form 214 as IADT), and November 2010 to December 2011, including all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). Service records providing retirement points are insufficient in this regard. The AOJ should prepare a summary of such dates and specifically request any available line of duty determinations. If records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 3. Then, return the claims file for a VA medical opinion by a VA examiner with sufficient expertise to determine the nature and etiology of the Veteran's back disability. The claims file must be made available to and reviewed by the examiner. Based on a review of the record, the examiner should provide an opinion 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 back disability is etiologically related to his first period of active service. Then, the examiner should state whether the Veteran's back disability clearly and unmistakably existed prior to a verified period of ACDUTRA/INACDUTRA or his second period of active service, beginning in November 2010. In responding to this question, the examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. Additionally, the Veteran's lay statements alone are not sufficient upon which to support a finding that a disability clearly and unmistakably preexisted service. Further, the lack of medical treatment or diagnosis during service alone is not a sufficient basis to determine that the disability was clearly and unmistakably not aggravated during active service. If the Veteran's back disability clearly and unmistakably existed prior to a verified period of ACDUTRA/INACDUTRA or his second period of active service, the examiner should provide an opinion as to whether his back disability was clearly and unmistakably NOT aggravated by a verified period of ACDUTRA/INACDUTRA or his second period of active service. In forming the opinion, the examiner should consider the Veteran's statements that he initially injured his back carrying a 75-pound pack during PT in 2006 and reinjured his back carrying another Marine during combat fitness training in 2010 and the Veteran's report that he was still bothered by back pain at his post-deployment health assessment in August 2011. If the Veteran's back disability did NOT clearly and unmistakably exist prior to a verified period of ACDUTRA/INACDUTRA or his second period of active service, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that his back disability is etiologically related to a verified period of ACDUTRA/INACDUTRA or his second period of active service. In forming the opinion, the examiner should consider the Veteran's statements that he initially injured his back carrying a 75-pound pack during PT in 2006 and reinjured his back carrying another Marine during combat fitness training in 2010 and the Veteran's report that he was still bothered by back pain at his post-deployment health assessment in August 2011. The rationale for all opinions expressed must be provided. 4. Then, return the claims file for a VA medical opinion by a VA examiner with sufficient expertise to determine the nature and etiology of the Veteran's urinary incontinence. The claims file must be made available to and reviewed by the examiner. Based on a review of the record, the examiner should state whether the Veteran's urinary incontinence clearly and unmistakably existed prior to a verified period of ACDUTRA/INACDUTRA or his second period of active service, beginning in November 2010. In responding to this question, the examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. Additionally, the Veteran's lay statements alone are not sufficient upon which to support a finding that a disability clearly and unmistakably preexisted service. Further, the lack of medical treatment or diagnosis during service alone is not a sufficient basis to determine that the disability was clearly and unmistakably not aggravated during active service. If the Veteran's urinary incontinence clearly and unmistakably existed prior to a verified period of ACDUTRA/INACDUTRA or his second period of active service, the examiner should provide an opinion as to whether his urinary incontinence was clearly and unmistakably NOT aggravated by a verified period of ACDUTRA/INACDUTRA or his second period of active service. In forming the opinion, the examiner must discuss the Veteran's reported reinjury of his back in 2010 and STR notation of one episode of urinary incontinence when he was bending over three weeks prior to January 8, 2013. If the Veteran's urinary incontinence did NOT clearly and unmistakably exist prior to a verified period of ACDUTRA/INACDUTRA or his second period of active service, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that his urinary incontinence is etiologically related to a verified period of ACDUTRA/INACDUTRA or his second period of active service. In forming the opinion, the examiner must discuss the Veteran's reported reinjury of his back in 2010 and STR notation of one episode of urinary incontinence when he was bending over three weeks prior to January 8, 2013. Additionally, the examiner should provide an opinion 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 urinary incontinence was caused or aggravated (chronically worsened) by the Veteran's back disability. In forming the opinion, the examiner must discuss the Veteran's reported reinjury of his back in 2010 and STR notation of one episode of urinary incontinence when he was bending over three weeks prior to January 8, 2013. The rationale for all opinions expressed must be provided. 5. Confirm that the VA medical opinions provided comport with this remand and undertake any other development determined to be warranted. (Continued on the next page) ? 6. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.