SHOULDER IMPAIRMENT OF

J.W. FRANCIS · 2022 · Case ID: 22037014

MIXED

Summary

The Veteran, a National Guard member who served from March 1982 to March 2010, primarily as a supply sergeant involved in ammunition handling, appeals the denial of service connection for several conditions, including right shoulder residuals, right knee residuals, bilateral hearing loss, tinnitus, sleep apnea, and bilateral ulnar release surgery residuals. The Veteran also sought service connection for a left shoulder disorder and cervical and thoracolumbar spine fusion residuals. The Board found that the evidence was in equipoise regarding the service connection for the left shoulder, right shoulder residuals, thoracolumbar spine fusion residuals, cervical spine fusion residuals, and bilateral hearing loss and tinnitus, resolving this doubt in the Veteran's favor and granting service connection for these conditions. The Board denied service connection for right knee residuals, sleep apnea, and bilateral ulnar release surgery residuals, finding the weight of the evidence did not support a service connection. The Veteran's service involved loading and unloading ammunition, often with less staff and more manual labor than his civilian job. The Board considered the Veteran's testimony and various service records, including payroll records, to evaluate the claims.

Rationale

Equal balance of competent and credible evidence; Resolved in favor of the Veteran

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-42 645

Full Decision Text

Citation Nr: 22037014
Decision Date: 06/28/22 Archive Date: 06/28/22

DOCKET NO. 14-42 645
DATE: June 28, 2022

ORDER

Service connection for left shoulder disorder is granted.

Service connection for residuals, right shoulder arthroscopy and two open shoulder surgeries, is granted.

Service connection for residuals, thoracolumbar laminectomy and spinal fusion, is granted.

Service connection for residuals, cervical spine fusion is granted.

Service connection for residuals of a right knee arthroscopy is denied.

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.

Service connection for sleep apnea is denied.

Service connection for residuals of bilateral ulnar release surgery is denied.

FINDINGS OF FACT

1. There is an equal balance of competent and credible evidence for and against whether a cervical spine, lumbar spine, and bilateral shoulder disorders were caused by repetitive loading and off-loading of training ammunition in the field during the Veteran's National Guard active duty for training (ADT) and inactive duty training (IDT).

2. The weight of competent and credible evidence is that the Veteran's right knee disorder and residuals of a carpal tunnel release surgery were not caused by National Guard ADT and IDT.

3. There is an equal balance of competent and credible evidence for and against whether the Veteran's bilateral hearing loss and tinnitus were caused by exposure to loud weapons noise in the field during the Veteran's National Guard active duty for training (ADT) and inactive duty training (IDT).

4. The weight of competent and credible evidence is that the Veteran's obstructive sleep apnea was not caused by National Guard ADT and IDT.

CONCLUSIONS OF LAW

1. The criteria for service connection for left shoulder disorder have been met. 38 U.S.C.§§ 101, 1110, 1131 (2012); 38 C.F.R. §§ 3.6, 3.303 (2021).

2. The criteria for service connection for residuals, right shoulder arthroscopy and two open shoulder surgeries have been met. 38 U.S.C.§§ 101, 1110, 1131 (2012); 38 C.F.R. §§ 3.6, 3.303 (2021).

3. The criteria for service connection for residuals, thoracolumbar laminectomy and spinal fusion have been met. 38 U.S.C.§§ 101, 1110, 1131 (2012); 38 C.F.R. §§ 3.6, 3.303 (2021).

4. The criteria for service connection for residuals, cervical spine fusion have been met. 38 U.S.C.§§ 101, 1110, 1131 (2012); 38 C.F.R. §§ 3.6, 3.303 (2021).

5. The criteria for service connection for residuals of a right knee arthroscopy have not been met. 38 U.S.C.§§ 101, 1110, 1131 (2012); 38 C.F.R. §§ 3.6, 3.303 (2021).

6. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.§§ 101, 1110, 1131 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.385 (2021).

7. The criteria for service connection for tinnitus have been met. 38 U.S.C.§§ 101, 1110, 1131 (2012); 38 C.F.R. §§ 3.6, 3.303 (2021).

8. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.§§ 101, 1110, 1131 (2012); 38 C.F.R. §§ 3.6, 3.303 (2021).

9. The criteria for service connection for residuals of bilateral ulnar release surgery have not been met. 38 U.S.C.§§ 101, 1110, 1131 (2012); 38 C.F.R. §§ 3.6, 3.303 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty for training in the United States Army National Guard for 9 weeks in 1983 with additional active duty for training and inactive duty training in the National Guard from March 1982 to March 2010.

These
); 38 C.F.R. §§ 3.6, 3.303 (2021).

9. The criteria for service connection for residuals of bilateral ulnar release surgery have not been met. 38 U.S.C.§§ 101, 1110, 1131 (2012); 38 C.F.R. §§ 3.6, 3.303 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran's claims file contains a copy of the hearing transcript.

In May 2018, the Board remanded the claims for additional development in part to determine whether injuries or onset of a chronic disorder occurred during a period of duty and not during civilian employment for the National Guard or when off duty and to obtain VA examinations.

National Guard Service

Service personnel records contain selected orders for active duty for training (ADT), listing of earned retirement points for ADT and inactive duty training (IDT), and records of payment for duty with codes indicating whether for ADT or IDT for the entire period of the Veteran's service from 1983 to 2010.

The Veteran reported and records confirm that he served in a Michigan National Guard unit as a supply sergeant with duties primarily involving ammunition handling in support of training in the field. This involved loading, truck driving, and offloading the ammunition at training sites. He also had some earlier infantry training.

The Veteran also was concurrently employed as a federal civil service materials handler. Membership in the National Guard was a condition of the civil service position. Records from the Office of Personnel Management show that the Veteran received a civilian disability retirement because he was found medically unfit for continued National Guard service in 2010. There was no mention of workers' compensation claims for injuries as a civilian. However, the Veteran did not cite injuries on National Guard service in his request for the civil service disability retirement.

The Veteran reported in written statements and during the Board hearing that his civilian work had regular hours requiring the loading and delivery of palletized supplies to various units with sufficient staff and handling equipment while the National Guard duties required delivery of ammunition to field training sites requiring longer hours, fewer staff, and more manual labor.

A listing of earned retirement points are of record. In addition, the Veteran submitted Department of Defense payroll records for the years 1994 to 2010 that show the dates of pay and whether it was for ADT or IDT. Although these were received after the most recent supplemental statement of the case, the Board finds that they are cumulative in showing the tempo of duty and may be helpful to the Veteran in documenting service on a particular date of injury. Therefore, a remand for the RO to consider this evidence is not warranted.

In a February 2022 brief, the Veteran provided information on the codes used in the payroll documents. The Veteran called attention to code 50 as indicating active duty. However, the DoD records do not distinguish between active duty and ADT. Other records confirm that the Veteran was never mobilized in a unit or individually for active duty. Therefore, the code 50 days are for ADT.

Service connection may be awarded for a disability resulting from disease or injury incurred or aggravated in ADT or from injury only incurred or aggravated on IDT. The Veteran contended that the records show some form of National Guard training for an average of three months per year. However, a closer review indicates that the average annual days of service were a little more than two months per year. The Veteran was also placed on restricted or light duty in December 2006. This is consistent with retirement points where a Guardsman can earn an IDT point for every four hours of training. The Veteran contends that because he served three times more than an average soldier, he was three times more likely to be injured, a speculative conclusion not supported by any competent authority.

The Veteran and multiple fellow soldiers provided statements reporting the circumstances of injuries or observation of pain during activity. These will be assessed below with each disability. Generally, they support the nature of National Guard duties as requiring heavy lifting, limited staff, faster pace of work, and the lack of medical personnel in the field compared to the circumstances of civilian work.

The Veteran contended that the Michigan National Guard
or light duty in December 2006. This is consistent with retirement points where a Guardsman can earn an IDT point for every four hours of training. The Veteran contends that because he served three times more than an average soldier, he was three times more likely to be injured, a speculative conclusion not supported by any competent authority.

The Veteran contended that the Michigan National Guard was responsible for a lack of treatment records, that there were only two physical examinations, that medical care was generally not available in the field, that his commitment to the mission caused him to press on regardless of injury, and that he would be discharged from service had he sought care for injury.

Service Treatment Records

The file contains several physical examination reports, annual medical certifications by the Veteran, few military outpatient records, a Line of Duty determination, and private treatment records during the period of National Guard service.

In an October 1982 enlistment examination, the Veteran reported only pre-service recurrent back pain and denied all other abnormalities. An audiometric test was performed.

In a December 1987 retention physical examination, the examiner noted abnormality only of the tonsils. The Veteran reported only gastrointestinal symptoms and denied any back, shoulder, or knee pain.

In a May 1991 physical examination, the examiner noted no abnormalities except for an appendectomy scar. The Veteran reported a hernia repair in 1989, recurrent gastrointestinal distress, and recurrent back pain. There was no audiometric test results.

In a 1998 physical examination, the examiner noted only abnormal hearing in the left ear. Audiometric test results were included. All other systems were normal.

In an August 1999 annual medical certificate, the Veteran denied any current medical problems.

In an August 2000 annual medical certificate, the Veteran reported only a history of knee surgery.

In an October 2003 physical examination, the examiner noted only decreased hearing acuity. An audiometric test was performed. All other systems including the spine, upper and lower extremities, mouth and nose, and respiratory systems were normal. However, the Veteran reported unspecified history of shoulder, knee, and foot problems. In a concurrent annual medical certificate, the Veteran reported only a history of hernia surgery in April 2003 and elbow surgery in September 2002. An evaluator found the Veteran fit for service.

A Line of Duty report dated January 24, 2005, documented a fall on stairs that resulted in a fracture of the right fifth toe during ADT. No other injuries were noted.

In a May 2004 annual medical certificate, the Veteran reported only hemorrhoid surgery one month earlier.

A February 2006 annual medical certificate lists dental, ulnar nerve, and nasal abnormalities.

A record of audiometric testing in July 2009 is in the file.

The Veteran was found not deployable and not fit for further duty because of cervical spine disability in February 2010. These records do not address whether this or any other disability was caused by military service.

Service Connection

In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

Active military, naval, or air service includes any period of active duty for training (ADT) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (IDT) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101 (21), (24), (106); 38 C.F.R. § 3.6 (a), (d). ADT includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(3).

To establish a right to compensation for a present disability, a veteran must show: "(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" the so-called "nexus"
§§ 101 (21), (24), (106); 38 C.F.R. § 3.6 (a), (d). ADT includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(3).

To establish a right to compensation for a present disability, a veteran must show: "(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" the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

As an alternative to the nexus requirement, service connection for certain chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)

Residuals of Cervical Spine Fusion

Residuals of Thoracolumbar Laminectomy and Spinal Fusion

Left Shoulder Disorder

Bilateral Carpal Tunnel (Ulnar) Release

Right Knee Disorder

In a November 2010 statement and in a February 2022 brief, the Veteran reported injuring his back lifting batteries during ADT at Camp Grayling at an unspecified time in 2002. He noted that he had felt a sharp pain, had difficulty straightening to walk, but the pain resolved until later he could feel a strain in his back. The Veteran reported back, neck and shoulder injuries offloading ammunitions at the same Camp at some time in 2003 when he felt a sharp pain to his neck, shoulders and back but the pain slowly went away as the offload progressed. He reported that in 2005, he twice hit his head in the cab of a vehicle. He reported that when he fell on stairs on January 24, 2005, he also hurt his buttock, back, and arms. And during an unspecified physical readiness test, he hurt his back and neck. He also reported that the regular loading and offloading materials caused strain or wear and tear in these areas.

In December 2010, a fellow soldier noted that he was present on ADT when the Veteran was injured loading and offloading a truck. He did not describe the nature of the injury, how it impaired the work, or the date of the event. In January 2011, a fellow soldier witnessed the Veteran in severe pain at unspecified times and was aware of a fall on stairs when the Veteran fractured his toe. The soldier did not mention other injuries and noted that getting a line of duty determination was to be avoided, although one was issued. In a November 2014 statement, a fellow solider noted that at some time from 1997 to 2009 he observed the Veteran in pain in his back and shoulders while lifting weapons and afterward could no longer perform his duties. Another soldier also reported observing the Veteran with pain in the back, shoulder and neck during ADT in June 2003. In February 2015, another soldier observed the January 2005 fall and reported that the Veteran landed on his back and hit his head and was ordered to a hospital. Two other soldiers in January 2011 and February 2015 attested to the Veteran's rigorous lifting and loading duties. One solider noted that medics were on duty, but the Veteran was fearful of losing his job or benefits.

The Board refers to the summary of service treatment records above. October 2003 physical examination and annual certificates in 2004 and 2006 are silent for any reports of residuals of traumatic injuries or chronic neck, back, knee, and shoulder pain. The Veteran notes that the absence of evidence cannot be used to challenge his reports. On the other hand, physical examinations and annual questionnaires are required opportunities to report medical problems, and failure to do so can jeopardize his participation in deployments for his unit, and place a burden on his fellow soldiers, notwithstanding the effect on his career.
and loading duties. One solider noted that medics were on duty, but the Veteran was fearful of losing his job or benefits.

The contention that medics were not available is inconsistent with the statement of one fellow soldier. When Veteran fell and fractured his foot, he was sent to a hospital and a line of duty determination was made. A fellow soldier confirmed the toe injury in a sworn statement. The Veteran reported other injuries that occurred in the mess hall and armory where some medical care or at least a supervisory notation would have been made, and in any case, private care shortly after the injury with notations on the time and nature of the injury would also be available as it was for the toe fracture. Private hospital records dated January 25, 2005, notes that the Veteran reported only pain in his right fifth toe and nothing about neck, shoulder or back at a time when it would be appropriate to do so. The Veteran has been awarded service-connection for residuals of the broken fifth toe.

Some records of private care during the Veteran's National Guard service have been obtained. Clinicians occasionally referred to "work" without differentiating between civilian and Guard duties and noted that the Veteran's recreation included bow hunting and "4 wheeling." Of significance is that none of the private treatment records mention reports by the Veteran of injuries in service as would be appropriate for diagnosis, treatment, and ultimately compensation.

In April 2000, the Veteran underwent right knee arthroscopic surgery to repair a torn meniscus. There was no mention of a traumatic injury or other cause and in March 2000, the Veteran denied any injury.

In December 2002 and January 2003, the Veteran was treated for left elbow ulnar entrapment. There was no mention of injury on or off Guard duty. In August 2006, the Veteran underwent magnetic resonance imaging of the cervical and lumbar spine. Evaluators noted only that the Veteran lifted heavy items for his job without distinction between civilian and Guard duties. The imaging showed a bulging disc in the cervical spine and disc space narrowing in the lumbar spine. The Veteran was reevaluated several times and provided physical therapy. The attending physicians noted the Veteran's report of neck and back pain for two years and that he continued to lift heavy items at work without distinction between civilian and Guard work.

In August 2005, the Veteran was diagnosed and treated for right biceps tendinitis and right elbow ulnar entrapment.

In November 2006, the Veteran underwent a cervical spine disc fusion procedure. In December 2006, the Veteran was placed on restricted duties with no lifting, pushing or carrying over 20 pounds because of neck, back, shoulder, and right leg pain.

Additional private records in 2007 - 2009 show continued cervical and lumbar pain, and clinicians clearly indicated that pain in the shoulders was radiating pain from the cervical spine and pain in the lower extremities was radiating from the lumbar spine. One clinician noted that the Veteran had previously undergone acromioplasty to reshape the tip of the shoulder blade but that the pain was not related to the shoulders.

In March 2007, the Veteran reported a fall on ice and resulted in shoulder pain but with no information on whether this was on Guard duty or concurrent with the toe fracture. In July 2007, the Veteran underwent a surgical repair of the right shoulder. May 2008 and July 2009, a clinician diagnosed bilateral shoulder impingement and a possible right shoulder labral tear.

In February 2010, the Veteran was found unfit for duty and received a disability retirement from both civilian and National Guard service because of the cervical spine disability.

Records of the award of disability benefits by the Social Security Administration were obtained. In a January 2013 letter, Dr. K.S. noted a recent consultation and that the Veteran worked as a supply sergeant handling material and driving vehicles. The Veteran had a right wrist ganglion but no residuals of the carpal tunnel procedure. In July 2013 letter and questionnaire, Dr. M.S. noted that he had provided care for the Veteran since 200
2009, a clinician diagnosed bilateral shoulder impingement and a possible right shoulder labral tear.

In February 2010, the Veteran was found unfit for duty and received a disability retirement from both civilian and National Guard service because of the cervical spine disability.

Records of the award of disability benefits by the Social Security Administration were obtained. In a January 2013 letter, Dr. K.S. noted a recent consultation and that the Veteran worked as a supply sergeant handling material and driving vehicles. The Veteran had a right wrist ganglion but no residuals of the carpal tunnel procedure. In July 2013 letter and questionnaire, Dr. M.S. noted that he had provided care for the Veteran since 2006 and summarized the disabilities and history that included cervical and lumbar spine, sleep apnea, and carpal tunnel syndrome. There was no mention of Guard duties or injuries. Other records show post-service care for these disorders but neglect to comment on their onset or causes.

In an April 2015 letter, Dr. M.S. provided an expanded version of his 2013 letter to the SSA. The physician continued the history of treatment for multiple disorders including cervical and lumbar spine, carpal tunnel syndrome, and sleep apnea. The physician added one sentence: "After examining [the Veteran's]chart and extensive medical records, it is also my medical opinion that his current conditions are more likely than not, directly caused the injuries and exposure he received while serving in the military." There was no citation to specific injuries, to the exposure, to the nature of the military or civilian duties, or other rationale.

During the February 2018 Board hearing, the Veteran called attention to the lack of National Guard physical examinations (he reported only two and none at retirement), on training site medical personnel, and insufficient staff and equipment to deliver and off load ammunition in the field. The Veteran called attention to the statements of his fellow soldiers who witnessed injuries while in training, but no specific dates were cited other than generally summer of 2003. He testified that his civilian duties also involved moving supplies but with shorter hours, sufficient staff, and handling equipment. He testified that medical personnel were roaming at the site, not readily available, but did not address what medical or supervisory personnel were available upon return to base. He testified that one injury to the neck occurred in a fall, another while loading batteries into a mess hall, and another offloading mortar rounds in 2003. He testified that when he fell and fractured his toe, he also hurt his back. He testified that he hurt his neck on the roof of truck going into a pit. He testified that he injured his shoulder while off- loading weapons at the armory and hurt his knee falling on a rock during "battle skills" training. With respect to his wrist, he testified that there was no specific trauma but treatment in 1995 for carpal tunnel syndrome was caused by the history of manual ammunition handling.

The Board remanded the claims in May 2018 to obtain detailed records of National Guard training, records of civilian employment, and a series of VA examinations. As noted above, records of dates and tempo of training have been obtained, and limited records of civilian employment do not address any injuries on the job. Civilian employment was at the same National Guard training facility as his service and was contingent on maintaining National Guard membership.

The series of VA examinations were performed in March 2019 by a physician who noted a review of the claims file including the National Guard examinations cited above and private medical records during and after service. In several reports, the physician noted that the Veteran was in service during the Iraq and Afghanistan wars but not in combat. It is not clear that the physician was aware that the Veteran served only on training duty at his home base and not continuously on active duty.

For the shoulders, neck, and back, the physician noted treatment for shoulder pain and impingement in 2009, for degenerative disease of the cervical spine in 2008, and for the back in 2007 and cited no record of any injury while not in service. A March 2019 X-ray showed no acute process to explain the left shoulder, cervical or lumbar spine pain. There were indications of stimulation electrodes at T7-8 and a metallic structure in the right shoulder. The physician found that the left shoulder disorder and back disorder were likely caused by service.

For the bilateral wrists, the physician cited the Veteran's report of onset in 2002 caused by typing, lifting, and physical training and the carpal tunnel release procedures in 2011 and 2012. On examination, there were no abnormal clinical findings. Although the physician acknowledged electrodiagnostic testing in 2002 that led to the release procedures, the
cited no record of any injury while not in service. A March 2019 X-ray showed no acute process to explain the left shoulder, cervical or lumbar spine pain. There were indications of stimulation electrodes at T7-8 and a metallic structure in the right shoulder. The physician found that the left shoulder disorder and back disorder were likely caused by service.

For the bilateral wrists, the physician cited the Veteran's report of onset in 2002 caused by typing, lifting, and physical training and the carpal tunnel release procedures in 2011 and 2012. On examination, there were no abnormal clinical findings. Although the physician acknowledged electrodiagnostic testing in 2002 that led to the release procedures, the disorders resolved and were no longer present. The physician found that the carpal tunnel syndrome ulnar neuropathy was less likely than not incurred during service.

For the right knee, the physician noted the Veteran's report of the injury to the right knee on a rock in 1991 with subsequent arthroscopic meniscus repair. A March 2019 X-ray showed no acute process to explain the reported knee pain. Following examination, the physician diagnosed right knee tendinitis but that it was not a residual of the previous meniscal surgery which had resolved and was not caused by service.

The Board finds that there is evidence both for and against service connection for neck, back, and shoulder disorders.

The Board finds that there is only one clearly documented traumatic injury on National Guard training duty; that is the fall on stairs in January 2005 consistent with the reports of fall on ice during cold weather. The records show a fractured toe and no other injuries at a time when any other injuries should have been reported. Therefore, the Board places low probative weight on reports of injury or concurrent neck, back, shoulder or knee injuries on that occasion.

Although the records of training do show a higher tempo of duty than most National Guard soldiers that is consistent with the Veteran's concurrent duties at the same facility, the Board places very low weight on the contention that he was three times more likely to be injured because it is a speculative conclusion not supported by any competent authority. Further, the statements from fellow soldiers reported witnessing the Veteran in pain while performing loading and unloading duties, not that they witnessed a traumatic injury. None could indicate a specific date that any injury occurred, only that the Veteran was performing repetitive lifting and unloading activity. The Veteran's reports of more manual work, longer hours, and fewer staff while delivering ammunition in the field is consistent with the nature of those duties. However, it is less probative that equipment back at the base would not be available, particularly to a soldier who was also a civilian supervisor. Even if medical personnel were not present in the field, medical care would have been available at the base, at least during the workday, and private care immediately after duty. Regardless, the Veteran was not restricted from seeking private care after duty and reporting his on duty injuries; however, none of the private records cite on-duty injuries or causes.

The Board acknowledges the Veteran's reports of avoiding care and clear documentation of injury in order to accomplish the mission and preclude discharge from the Guard and loss of civilian job. The Board places less probative weight on these reports as valid reasons because the mission was not overseas mobilization but rather routine material support for training. Moreover, concealing physical abnormalities from examinations and annual questionnaires would be detrimental to his and his unit's readiness for deployment, the primary mission of the Guard. Finally, the Veteran was assigned supervisory and limited duties in 2006. There is nothing to show that the Veteran was unable to perform administrative or supervisory duties regardless of his physical limitations. That the private medical records during the period of Guard service do not cite specific injuries or causes while on duty is not negative evidence but rather positive evidence that any events on duty were not the cause as opposed to civilian activities. Had the Veteran sustained a head and neck injury in a truck accident or lifting strains on Guard duty, it would have been appropriate to report this during his extended private care for the cervical spine disease.

The Board places low probative weight on both the private and VA medical opinions. Dr. M.S. first letter to SSA was silent for any Guard injuries. The second letter's opinion is conclusory without any specifics or rationale. The VA physician cited the onset of neck, back and shoulder abnormalities that occurred during the calendar period of service but did not acknowledge the Veteran's service as part-time and not full time mobilized service during the wars in Southwest Asia.

Nevertheless, the Board does place weight on the credible reports by the Veteran and his fellow soldiers that he did experience neck, back and shoulder pain while performing repetitive the manual labor in the field. It is credible that the loading and offloading of munitions is a more rigorous activity in the field that would be likely in a warehouse or armory. Therefore, without finding that any traumatic injuries clearly occurred while on ADT, the Board will afford the benefit of doubt that his National Guard ammunitions handling in the field likely over time caused or at least aggravated the spinal and shoulders disease process. The fellow soldiers did witness the presence of pain during their activities and the Veteran was later diagnosed with bilateral shoulder, cervical and lumbar spine disease. Even though it is unlikely that a baseline level of dysfunction can be established, the Board will grant service connection for cervical and lumbar spine disease and for bilateral shoulder joint disease and impingement on the basis of aggravation.

The Board finds that the weight of competent and credible evidence does not support service connection for right knee and bilateral carpal tunnel or ulnar release residuals.

The Veteran reported that he hit is knee on a rock in 1991 on field exercises but then continued with his job and Guard duties. He also reported kneeling in truck beds and on pallets during off loads. He reported arthroscopic surgery at some time between 2000 and 2002. One of the records of clinical care or surgery mention any aspect of National Guard service, referring only generally to "work." The Board does not find sufficient evidence to show that even if the fall occurred as described by the Veteran, that it was the cause of torn meniscus after almost ten years of both civilian and Guard activity. The Board finds that walking, kneeling and activity around trucks was not distinguishable from civilian work and recreational activities. After the surgery, the Veteran denied any knee problems during the 2003 examination and subsequent annual certificates and continued to pass physical readiness tests until on restricted duty in 2006 for other reasons. The degree of wear and tear from extended walking or operating vehicles for the Guard was over much less time than that for his civilian job or his personal recreation and activity. The Board is unable to justify a distinction as was drawn for the neck, shoulders, and back above. Moreover, the VA examiner did find that current right knee tendinitis was not a residual of the torn meniscus. Dr. M.S.'s opinion provided no specific rationale.

Likewise, for the bilateral carpal tunnel or ulnar release residuals, the Board is unable to draw distinction between the hand and wrist activities over time from typing or material handling in the civilian, Guard, and personal off-duty activities. A hand injury was reported to have occurred in 1995, electrodiagnostic testing identified abnormalities in 2002, with the release procedures in 2011 and 2012. The Veteran denied any residuals of a hand or wrist injury in 1998, 2003, and did not report any problems or limitation in 2004 and 2006. The Board place low weight on the VA and private medical opinions. The VA physician found no current ulnar nerve abnormalities and cited a release procedure in 2006. On the basis of a procedure in 2006, the physician found that it occurred during service without addressing the nature of the ADT versus civilian service and private life or whether there were any residuals at all. Dr. M.S.'s opinion had no rationale.

Therefore, service connection for a right knee disorder and for residuals of wrist or ulnar nerve release residual is not warranted.

Bilateral Hearing Loss and Tinnitus

The Veteran contends that he experiences bilateral hearing loss and tinnitus caused by exposure to noise from National Guard weapons training. Specifically, as an ammunition supply sergeant, he delivered weapons including artillery and mortar rounds to soldiers training in the field and was in proximity to the noise from firing these weapons. In a November 2010 statement and during the Board hearing, the Veteran also reported noise during his own field training from small arms firing and riding in helicopters but with hearing protection. He reported ringing sensation in the ears after training events. The Board refers to the summary of the nature of the Veteran's duties above, and finds that exposure
residuals of wrist or ulnar nerve release residual is not warranted.

Bilateral Hearing Loss and Tinnitus

The Veteran contends that he experiences bilateral hearing loss and tinnitus caused by exposure to noise from National Guard weapons training. Specifically, as an ammunition supply sergeant, he delivered weapons including artillery and mortar rounds to soldiers training in the field and was in proximity to the noise from firing these weapons. In a November 2010 statement and during the Board hearing, the Veteran also reported noise during his own field training from small arms firing and riding in helicopters but with hearing protection. He reported ringing sensation in the ears after training events. The Board refers to the summary of the nature of the Veteran's duties above, and finds that exposure to loud noise in the National Guard is consistent with these duties. He was also likely exposed to noise from handling equipment while working as a civilian in a warehouse at likely a lower intensity.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, or 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.

Service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he experienced while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, 5 Vet. App. 155.

Service treatment records contain many reports of physical examinations including an enlistment examination in March 1982, a December 1987 retention, May 1991, October 1998, and September 2003 examinations with audiometric test results. No abnormalities or symptoms of ear or hearing were noted by examiners and the Veteran denied hearing loss in medical history questionnaires. None of the records show restricted duties because of hearing acuity until a profile was noted in January 2010. The National Guard documents associated with the Veteran's disability retirement do not indicate that hearing loss or tinnitus was a factor in the finding of unfit for further service.

In a March 1982 enlistment physical examination, audiometric test results in decibels were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 30 15 15 20 15

LEFT 20 10 10 30 50

In a December 1987 physical examination, audiometric test results in decibels were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 5 5 5 20

LEFT 15 10 10 25 40

In a May 1991, physical examination, audiometric test results in decibels were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 5 0 10 15

LEFT 5 0 5 30 45

In an October 1998 physical examination, audiometric test results with thresholds in decibels were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 25 10 5 25 20

LEFT 20 15 5 50 45

In an October 2003 examination, the examiner noted hearing acuity decreasing and recommended hearing protection, but the Veteran denied hearing loss. Audiometric test results were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 5 0 25 30

LEFT 20 10 10 55 40

The Veteran underwent a private hearing acuity examination in January 2005. The audiometric test results obtained from a graph were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 10
25 20

LEFT 20 15 5 50 45

In an October 2003 examination, the examiner noted hearing acuity decreasing and recommended hearing protection, but the Veteran denied hearing loss. Audiometric test results were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 5 0 25 30

LEFT 20 10 10 55 40

The Veteran underwent a private hearing acuity examination in January 2005. The audiometric test results obtained from a graph were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 10 10 25 30

LEFT 15 10 10 55 40

An audiometric test in July 2009 was noted as performed 14 hours after exposure. The test results were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 20 5 20 45 20

LEFT 20 5 10 60 35

The Veteran underwent a VA hearing loss and tinnitus examination in March 2019. The examiner noted a review of the file and that hearing examinations were performed in 1982, 1987, 1991, 2004 and 2009. The examiner cited the Veteran's 27 years of service including Afghanistan and Iraq wars but not in combat but did not acknowledge that the service was on ADT in the National Guard and not overseas but that the Veteran was exposed to noise from weapons and trucks. The Veteran also reported current tinnitus that started during his service. Audiometric test results were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 20 35 50 30

LEFT 20 20 40 65 55

Speech discrimination scores were 94 percent bilaterally. The audiologist found that there was a positive threshold shift in both ears over time and concluded that current hearing loss and tinnitus were caused by the reported noise in service.

The Board finds that the Veteran does have hearing loss that meets VA criteria for disability because the most recent test results show thresholds of 40 decibels or greater at one or more frequencies. Further, test results during the period of his service also show thresholds above 40 decibels bilaterally. The Veteran's report of current tinnitus was accepted by the VA audiologist as consistent with hearing loss. As noted above, the Board finds that the Veteran was exposed to loud noise during National Guard training.

There is evidence both for and against whether the onset of hearing loss and tinnitus occurred during or was caused by National Guard duty. During the Board hearing, the Veteran testified that he was not exposed to explosions in his civilian job but the testimony and medical records including the VA examination did not address other types of noise from vehicles, equipment, or recreational activities outside of his training duty that was a significant time over 27 years. It is not credible that National Guard noise was the only loud noise exposure over this time. The Board's review of the history of audiometric testing is not consistent with that quoted by the VA examiner in that it does not clearly show significant declining trends except for 30-decibel increase at 3000 Hz in the left ear. The examiner also incorrectly referred to 27 years of Army service without acknowledgement that it was intermittent training service in the National Guard.

Nevertheless, there is insufficient evidence to separate the exposure of noise during National Guard training from that experienced in the civilian job at the same facility or while off duty. The Board finds that there was at least a contribution from the military service, and without further evidence to quantify the relative contribution to the cause, the Board finds that the hearing loss and tinnitus was at least in part caused by military noise exposure.

Obstructive Sleep Apnea

The Veteran contends that he has obstructive sleep apnea, diagnosed in 2009 during the period of his service, and that he was told by other soldiers that he stopped breathing while asleep. He testified during the Board hearing that he was not obese and had maintained a normal weight during his service.

Service treatment records are silent for any reports by the Veteran or observation by clinicians of symptoms of interrupted breathing while asleep, abnormal respiratory symptoms or anatomy, or chronic daytime fatigue. Sleep apnea was not mentioned as part of the disability retirement evaluation showing that it would not have been a cause for earlier discharge or loss of civilian job.

None of the statements from fellow soldiers note observing interrupted breathing or snoring while sleeping.

In October 2010, the Veteran underwent a private sleep study. The attending physician noted
2009 during the period of his service, and that he was told by other soldiers that he stopped breathing while asleep. He testified during the Board hearing that he was not obese and had maintained a normal weight during his service.

None of the statements from fellow soldiers note observing interrupted breathing or snoring while sleeping.

In October 2010, the Veteran underwent a private sleep study. The attending physician noted reports by the Veteran of insomnia, GERD, depression, snoring, and "observed apneas." Body mass index was noted as 28.1 kilograms per square meter which categorized as "overweight." The physician evaluated test results as severe obstructive sleep apnea. There was no mention of National Guard service.

In an April 2016 letter, the Veteran's private physician noted that he had treated the Veteran since 2006 and that the Veteran had been diagnosed with various orthopedic disorders, GERD, carpal tunnel syndrome and sleep apnea. The physician cited a timetable of treatment encounters that did not include the sleep apnea testing. The physician generally stated that in his professional opinion, the current conditions were more likely than not directly caused by injury or exposures while in military service. In a second letter the same month, the physician noted the Veteran's report of daytime tiredness in 2008 and that other soldiers and the Veteran's wife observed interrupted nocturnal breathing. The physician found that the sleep apnea was due to service because medical research has linked it to painful skeletal or arthritic conditions, that these conditions preclude exercise, and that medication exacerbate the symptoms of sleep apnea. The physician provided no citations to research, nor did he provide a physiological rationale for the opinion.

During the Board hearing, the Veteran first started noticing daytime fatigue but assumed it was from normal working until a fellow soldier told him that he snored and stopped breathing. He acknowledged that no one had told him the cause but that his current disability was evaluated as severe. He reported that he was never obese in service.

The Veteran underwent a VA examination for sleep apnea in March 2019. A VA physician noted a lengthy list of treatment encounters for unrelated medical problems but did not cite the sleep study but noted that the Veteran was diagnosed with sleep apnea during his period of service and, without further explanation found that it was incurred in service. The physician did not acknowledge or address the nature of the intermittent National Guard training service or cite any particular causes.

The Board finds that the weight of competent and credible evidence is that the Veteran's current sleep apnea was not incurred during or was caused by ADT or IDT service. There is insufficient lay or medical evidence to show that it necessarily started because of some circumstance during ADT or IDT, that it was caused by injury. The Board finds that both the VA and private physician opinions are superficial, conclusory, and fail to provide reasoned and supportable rationale. Neither opinion nor the record differentiates the Veteran's time in National Guard training from his much longer periods of civilian life. His report of not being obese is contrary to the record. None of the fellow soldiers mentioned observing interrupted breathing or snoring and the comment by the private physician that the wife did so was second-hand information and in any event did not differentiate between service and training time. Unlike the disabilities above where the Board can find features of National Guard service that can be shown to afford cause or more weight to experiences in training, this is not the case with sleep apnea. The Board finds insufficient evidence that the disorder was incurred during or was caused by any aspect of National Guard training. Therefore, service connection for obstructive sleep apnea is not warranted.

J.W. FRANCIS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. J. Komins, 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.

Analyze in VA Law Explorer