Citation Nr: 1042016 Decision Date: 11/08/10 Archive Date: 11/18/10 DOCKET NO. 04-43 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an initial disability rating in excess of 10 percent for chronic otitis media in the right ear. ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from November 1980 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. The claims were remanded by the Board for additional development in January 2007 and April 2009. Subsequent to the issuance of the December 2009 Supplemental Statement of the Case, the Veteran submitted additional evidence which was not considered by the RO. The Veteran has waived RO consideration of that evidence in a July 2010 submission, therefore, the Board may consider the appeal. 38 C.F.R. § 20.1304 (2010). FINDINGS OF FACT 1. Sleep apnea was initially demonstrated years after service, and has not been shown by competent clinical evidence of record to be related to service, to include exposure to contaminants; nor has it been shown to be related to a service-connected disability. 2. The Veteran is in receipt of the maximum schedular rating assignable for his otitis media. It does not present an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in or aggravated by active service, nor was it caused or aggravated by service-connected fibromyalgia. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2010). 2. The criteria for a disability rating in excess of 10 percent for otitis media are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6200 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated in December 2004, January 2007, and October 2008, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009) and 38 C.F.R. § 3.159(b) (2010). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's increased disability rating claim arises from his disagreement with the initial rating following the grant of service connection. Courts have held that, once service connection is granted, the claim is substantiated and additional notice is not required. Thus any defect in the notice provided to the Veteran is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009) and 38 C.F.R. § 3.159(c) (2010). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claims. Thus, the duties to notify and assist have been met. 1. Entitlement to service connection for obstructive sleep apnea. Pertinent Statutes and Regulations for Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2010). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a Veteran's nonservice- connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995); see also 38 C.F.R. § 3.310 (2010). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background and Analysis The Veteran contends that he has sleep apnea/hypopnea that was first manifested during his period of active service. He has also asserted that his obstructive sleep apnea may be secondary to his service-connected fibromyalgia. With respect to the former, the Veteran has submitted medical literature showing a causal link between sinus bradycardia and obstructive sleep apnea. He asserts that because he was found to have sinus bradycardia in-service, this is persuasive evidence indicating that he also had undiagnosed sleep apnea in-service. Alternatively, he contends that he was exposed to contaminants as a result of his involvement in the overhaul of the U.S.S. Jouett, and that he developed sleep apnea as a result. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for obstructive sleep apnea. The Veteran's service treatment records are negative for complaints, symptoms, findings or diagnoses related to sleep apnea. Separation/retirement examination in 1998 indicated a normal clinical evaluation of the sinuses, head/face/neck/nose, mouth/throat, heart, and lungs/chest. Therefore, because obstructive sleep apnea was not seen during service, service connection may not be established based on chronicity in service or continuity of symptomatology thereafter. 38 C.F.R. § 3.303; Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Moreover, although separation examination and diagnostic studies conducted in April 1984 and May 1991 did show sinus bradycardia, as will be explained below, such "awaking" sinus bradycardia is not diagnostic of sleep apnea. See VA Examination, October 2008. Following service, medical records are negative for sleep apnea until 2003. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In this regard, the record shows that the Veteran was first diagnosed with obstructive sleep apnea by a private examination in February 2003. See Sleep Disorders Center Polysomnogram Report, February 2003. At that time, recommendations for control of the sleep apnea included a weight reduction program, positional therapy, avoidance of alcohol, hypnotics, tranquilizers, narcotics, and other central nervous system depressants, and therapeutic sleep study using a CPAP machine. Private medical records reflect treatment for sleep apnea since 2003 that has continued through the appeal period. However, these records simply contain no opinion or evidence that the Veteran's sleep apnea is related to active duty, or to any incident therein, to include exposure to contaminants. There is also no opinion or evidence relating the Veteran's service- connected disabilities, to include fibromyalgia, to his sleep apnea. In fact, multiple VA examiners have reached the opposite conclusion. On VA examination in February 2007, the examiner reviewed the Veteran's service treatment records and stated that no diagnosis of sleep apnea was made during service, nor were any symptoms usually associated with sleep apnea reported. The examiner also reviewed the December 1998 retirement/separation examination and expressly found that none of the conditions noted (e.g., pseudofolliculitis barbi, lesions, dermatitis, etc.,) upon separation contributed to his sleep apnea. He also opined that none of the Veteran's service-connected disabilities caused the sleep apnea. Specifically, he opined that it was "not likely that the Veteran's obstructive sleep apnea [was] related to his period of active service including service-connected adjustment disorder and/or fibromyalgia." He also discounted the possibility of aggravation. With respect to the Veteran's contention that the in-service findings related to sinus bradycardia were early manifestations of sleep apnea, the October 2008 VA examiner found the opposite. It was indicated that there was "no evidence in the service medical records that the Veteran was diagnosed with having sleep apnea or medical conditions which would lead to sleep apnea." (Emphasis added). He explained that sinus bradycardia occurring during sleep, as shown on the Veteran's post-service 2003 polysomnogram report, is indicative of sleep apnea. However, it was explained that "awaking" sinus bradycardia, as shown in- service, was a normal finding and not diagnostic of sleep apnea. Moreover, upon physical examination of the Veteran, the examiner noted a "congenitally small oropharynx." Ultimately, it was opined that the Veteran's sleep apnea was caused by a congenitally small oropharyx and worsened by increasing obesity. With respect to the Veteran's contention that his involvement in the overhaul of the U.S.S. Jouett cause him to develop sleep apnea, the October 2009 VA examiner again reached the opposite conclusion. The examiner expressly opined that it was less likely than not that the Veteran's sleep apnea was caused by or a result of exposure to contaminants while overhauling the U.S.S. Jouett. The examiner based the opinion on a thorough review of the medical record and related medical literature, as well as personal clinical experience. The examiner also noted that sleep apnea was often associated with a crowded oropharyngeal airway, which, notably, was shown upon VA examination of the Veteran in October 2008. The October 2009 VA examiner ultimately opined that current medical literature did not support a finding that sleep apnea was caused by contaminant exposure; moreover, the examiner concurred with the October 2008 VA examiner that the Veteran's sleep apnea was due to a congenially small oropharynx and that it was worsened by his increasing obesity. The Board finds the February 2007, October 2008, and October 2009 VA examiners' opinions to be highly probative to the questions at hand. In this case, competent VA examiners found that the Veteran's sleep apnea was not related to service; that it was not secondary to, or aggravated by a service-connected disability, including fibromyalgia; that it was not caused by his in-service exposure to contaminants; and that the in-service findings related to sinus bradycardia were not indicative of sleep apnea. These opinions are considered probative as they were definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, they are found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board is aware of the Veteran's own contentions. However, the Veteran himself is not competent to diagnose the etiology of his own disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). As a result, his assertions cannot constitute competent medical evidence that he has sleep apnea due to active duty. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007). Nevertheless, while the Veteran is competent to observe continuity of sleep apnea since service, his exposure to contaminants, and his in-service diagnosis of sinus bradycardia, his opinions regarding etiology are outweighed by the lack of probative medical evidence in support of his claim. In this regard, while the Board acknowledges that the absence of any corroborating medical evidence supporting the Veteran's assertions, in and of itself, does not render the statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). Simply stated, the Veteran's service treatment records (containing no complaints, symptoms, findings or diagnoses of sleep apnea) and post-service treatment records (showing no sleep apnea until 2003, and containing no competent medical evidence linking the sleep apnea to the Veteran's service) outweigh the Veteran's contentions. It is noted that the record also includes numerous internet articles and medical literature that the Veteran has submitted in support of his claim. The submissions provide medical information that is very general in nature and does not address the specific facts of the Veteran's claim before the Board. As this generic medical journal or treatise evidence does not specifically state an opinion as to the relationship between the Veteran's current sleep apnea and service, his in-service findings of sinus (awaking) bradycardia, his exposure to contaminants, or to his service-connected fibromyalgia, it is insufficient to establish the element of medical nexus evidence. See Sacks v. West, 11 Vet. App. 314 (1998). In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for obstructive sleep apnea. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, 1 Vet. App. at 49; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to an initial evaluation in excess of 10 percent for chronic otitis media in the right ear. Pertinent Statutes and Regulations for Increased Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2010); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2010). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2010). Factual Background and Analysis The Veteran contends that his service-connected otitis media is more disabling than the current disability rating reflects. See February 2009 Statement from Veteran. He particularly endorses constant right ear drainage and pain. By way of procedural history, in August 2008, the Board granted the Veteran's claim of entitlement to service connection for chronic otitis media in the right ear. In a September 2008 rating decision, the RO implemented the grant of service connection for otitis and assigned a noncompensable disability rating, effective June 14, 2004. In March 2009 statement, the Veteran disagreed with the initial rating assigned following the grant of service connection. In April 2009, the Board remanded the claim for issuance of a Statement of the Case on the issue of entitlement to an initial compensable disability rating for chronic otitis, right ear. Subsequent to the Board's April 2009 Remand, the RO issued a rating decision in September 2008, which increased the disability rating for otitis to 10 percent disabling, effective June 14, 2004 (date of claim for service connection). The Veteran's otitis media is currently rated as 10 percent disabling under Diagnostic Code 6200, effective June 14, 2004. Under Diagnostic Code 6200, a 10 percent disability rating is provided for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) during suppuration, or with aural polyps. This is the maximum rating allowable. A Note to Diagnostic Code 6200 provides that hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull, are to be rated separately. 38 C.F.R. § 4.87 (2010). Where the criteria for a compensable disability rating under a diagnostic code are not met, and the schedule does not provide for a zero percent evaluation, a zero percent disability rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2010). The evidence of record includes private treatment records from Dr. Porcase, Dr. Jones, and Dr. Brink, which show recurrent treatment for chronic otitis media (right ear), right ear draining, and ear infections (enerobacter aerogenes) in October 2005, December 2005, and October 2008. For instance, a December 2005 private treatment record from Dr. Jones reflects subjective complaints of chronic otitis media and right ear pain. At that time, a computed tomography (CT) scan of the temporal bones revealed extensive sclerosis of the right mastoid without significant mucosal thickening or fluid. There was no erosion of the ossicles or scutum or ossicular displacement, and the structures of the otic capsule were well formed. The impression was sclerosis of the right mastoid suggestive of previous inflammatory disease, and there was no soft tissue density or evidence of cholesteatoma. Likewise, a December 2005 private treatment report from Dr. Brink shows that the Veteran was evaluated for an ear infection. Upon examination, the right ear had a retracted tympanic membrane. The diagnoses were eustachian tube dysfunction and history of recurrent acute otitis media. Also of record are VA audio examinations conducted in December 2003 and February 2007. Both examinations indicate a long history of bilateral ear infections, middle ear system dysfunction, and eustachian tube dysfunction in the right ear, per the Veteran's reports. In addition to objective right ear hearing loss, intermittent, subjective tinnitus was also reported. Otoscopy also revealed a retracted right eardrum. The December 2003 VA examination shows that the Veteran denied having vertigo and/or balance/gait problems other than when he was experiencing an ear infection or neoplasm in the ear. The diagnostic impression was reported hearing loss with recurrent ear infections. The examiner noted that there was honey-colored crust in the Veteran's right ear which was suggestive of cholesteatoma; however, a follow-up CT report confirmed that there was no cholesteatoma present and right ear middle ear structures were normal. The examiner concluded that his right ear hearing loss was likely due to the recurrent ear infections. The Board finds that the Veteran is already receiving the maximum scheduler disability rating allowable under Diagnostic Code 6200 for his service-connected otitis media, right ear. Moreover, he has already been granted separate ratings for the associated right ear hearing impairment and tinnitus (See Rating Decision, June 2004). There is no indication that he has facial nerve paralysis or bone loss that would warrant additional separate ratings under Diagnostic Code 6200. While the Board acknowledges the Veteran's contention that the otitis media is more severe than it has been previously, it is constrained by the regulatory guidelines, which allow for no more than a 10 percent disability rating. See 38 C.F.R. § 4.87. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluations are not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards and the Board has been similarly unsuccessful. The record in this case does not demonstrate that his service-connected otitis media markedly interferes with employment or that he has required frequent periods of hospitalization because of them, and the recent VA and private examinations are void of any findings of exceptional limitation due to otitis media beyond that contemplated by the schedule of ratings. Therefore, the Board finds that there is no evidence to show that the application of the regular rating schedule is impractical. Accordingly, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has also considered the Veteran's contentions including the numerous statements submitted in support of his claim. He essentially reiterated previously submitted information regarding his symptoms and complaints made during VA examinations and private evaluations. But inasmuch as he is not competent to identify a specific level of disability as determined by the appropriate diagnostic codes, there is no means to increase the ratings based on the medical evidence currently of record. He is certainly competent to report that his symptoms are worse. See Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). To the extent that the Veteran argues or suggests that the clinical data supports an increased evaluation or that the rating criteria should not be employed, he is not competent to make such an assertion. See Espiritu, 2 Vet. App. at 494. Thus, the current level of disability shown is encompassed by the rating assigned and with due consideration to the provision of 38 C.F.R. § 4.7, higher disability rating is not warranted. See Hart, supra. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for obstructive sleep apnea is denied. A disability rating in excess of 10 percent for otitis media, right ear, is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs