Citation Nr: 1307487	
Decision Date: 03/05/13    Archive Date: 03/11/13

DOCKET NO.  07-06 221	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a hearing loss disability.  

2.  Entitlement to service connection for tinnitus.  

3.  Entitlement to service connection for hepatitis.

4.  Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected diabetes mellitus, Type II.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L.B. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Navy from August 1965 to August 1969. 

This matter came before the Board of Veterans' Appeals (Board) on appeal from January 2006 and July 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The January 2006 decision denied service connection for hearing loss, tinnitus, and hepatitis, while the July 2009 decision addressed obstructive sleep apnea.

The Veteran testified before the undersigned at personal hearing held via videoconference from the RO in November 2010.  Unfortunately the video portion of the transmission was not functioning; however, the Veteran opted to proceed with audio only, and waived any objection to the form of the hearing.  A transcript of the proceeding is of record. 

In a June 2011 decision, the Board reopened a previously denied claim of service connection for hypertension, but denied the reopened claim on the merits.  In addition, the Board remanded the appeal for additional development of the record as to the issues of entitlement to service connection for hearing loss, tinnitus, hepatitis, and obstructive sleep apnea.  

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure review of the totality of the evidence.  The Virtual VA system reveals that additional medical records have been associated with the file since the most recent supplemental statement of the case; the Veteran, through his representative, waived initial RO consideration of this evidence.  38 C.F.R. § 20.1304(c); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)

Unfortunately, the issues of entitlement to service connection for hepatitis and tinnitus require additional development of the record; and are therefore addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The competent and probative evidence of record establishes that the Veteran's hearing loss does not constitute a hearing loss disability for VA purposes.  

2.  The competent and probative evidence of record establishes that the Veteran's sleep apnea had its onset many years after separation from service, is not likely related to any incident of service, and is less likely than not related to or aggravated by the service-connected diabetes mellitus.  


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by active service, nor may service incurrence of sensorineural hearing loss be presumed.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 

2.  Sleep apnea was not incurred in service and is not secondary to the service-connected diabetes mellitus.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).  The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

With regard to the claim of service connection for hearing loss, an initial duty-to-assist letter was sent to the Veteran in August 2005, prior to the initial adjudication in January 2006.  The letter informed the Veteran of what evidence was necessary to substantiate a claim for service connection, and the letter also informed the Veteran of whether VA or the Veteran was responsible for obtaining certain evidence.  With regard to the claim of service connection for sleep apnea, an initial duty-to-assist letter was sent to the Veteran in May 2008, prior to the initial adjudication of that claim in July 2009.  That letter informed the Veteran of what evidence was necessary to substantiate a claim of secondary service connection, and, the letter also informed the Veteran of whether VA or the Veteran was responsible for obtaining evidence.  

The initial August 2005 letter did not specifically notify the Veteran about the assignment of disability ratings and effective dates for all grants of service connection.  However, the subsequent letter sent in May 2008 did notify the Veteran about the assignment of disability ratings and effective dates for all grants of service connection.  The case was subsequently remanded, and the RO reajudicated the case by way of a supplemental statement of the case in September 2012.  Thus, any timing errors with regard to notice were subsequently corrected.  

Meanwhile, after the case was remanded in June 2011, the RO sent an additional letter to the Veteran requesting authorization to obtain any private treatment records identified by the Veteran with respect to his claims.  The letter also requested the Veteran to provide information regarding any VA treatment facility that he received treatment pertinent to his claims.  Finally, the letter notified him that VA examinations were being scheduled on his behalf and advised the Veteran about the consequences of his failure to report to those examinations.  This was accomplished in compliance with the Board's June 2011 remand directives.  The RO subsequently obtained VA records identified by the Veteran and there is no indication that any records identified by him are outstanding.  

Also, per the June 2011 remand directives, a series of VA examinations were held in September 2011.  The September 2011 examination is adequate for the purpose for which it was conducted.  As such, there has been compliance with the June 2011 remand directives and no further action is necessary in that regard.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  

Service treatment records have been associated with the claims folder.  In addition, VA afforded the Veteran physical examinations, obtained medical opinions, and afforded the Veteran the opportunity to give testimony before the Board.  All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.  VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.


II.  Service Connection

The Veteran seeks service connection for hearing loss and sleep apnea.  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).  

Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as hearing loss (as an organic disease of the nervous system) to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service.  38 U.S.C.A. §§ 1101, 1112, 1113; 1137; 38 C.F.R. §§ 3.307, 3.309.

Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected and once established for a secondary condition, the secondary condition shall be considered part of the original condition.  This is secondary service connection.  38 C.F.R. § 3.310(a).  

Additionally, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease will be service connected.  However, VA will not concede a nonservice-connected aggravation unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of evidence establishing the current level of severity of the nonservice-connected disease.  This is service connection on an aggravation theory.  38 U.S.C.A. § 3.310(b).

The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).  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.  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Competent and credible lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing entitlement to service connection.  When, for example, 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 the lay testimony and make a credibility determination as to whether it supports service connection.  See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).  Medical evidence is therefore not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Nonetheless, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), tinnitus (ringing in the ears), varicose veins, etc., they are not competent to provide evidence on more complex medical questions beyond simple observations.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating 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).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).

Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases.  Id at 1337.  See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).  The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence.  Id.

Hearing Loss

The Veteran seeks service connection for bilateral hearing loss as a result of his active service.  He essentially contends that he was exposed to noise while on active duty and that any current hearing loss is attributable to that acoustic trauma. 

The determination of whether a veteran has a current hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.  "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993). 

The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Id. at 157.  The regulations set forth in 38 C.F.R. § 3.385 operate only to establish when a hearing loss can be service connected.  Id. at 159.  It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service. 

The Veteran's service treatment records (STRs) show that his hearing was normal at the time of entry into service based on audiometric findings in August 1965.  

NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  When the audiometric results reported in ASA units are converted into ISO units, the numbers are somewhat higher.

Some of the audiograms in service are presumed to have been reported using ASA standards because they were recorded prior to November 1, 1967.  As such, the ASA units, when converted to ISO units would be higher, and are shown in parentheses where applicable (and pertinent).

The Veteran's August 1965 entrance examination revealed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0(15)
0(10)
-5(5)
n/a
0(5)
LEFT
0(15)
0(10)
0(10)
n/a
10(15)

Based on the above findings, the Veteran had normal hearing at entry.  The Veteran's STRs do not contain a separation examination, and the Veteran testified at his video conference hearing in November 2010 that he was never afforded the opportunity to be examined upon separation from service.  Regardless of the fact that the Veteran's hearing at separation from service is unknown, the fact remains that no post-service evidence of record shows a hearing loss disability for VA purposes at any time during the period covered by this appeal.  

Post-service treatment records include VA outpatient treatment records dating back to November 2004.  None of these records show a hearing loss disability for VA purposes.  

A September 2010 VA audiology consult notes that the Veteran complained of decreased hearing in both ears.  The Veteran reported constant tinnitus in both ears and reported military and civilian noise exposure.  The Veteran denied middle ear problems, surgeries or head injury, but complained of 2 to 3 episodes of vertigo a month for the last 3 to 4 years.  

The Veteran's September 2010 audiogram results revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
15
20
15
LEFT
15
15
15
25
30

The audiologist's assessment was essentially normal hearing with only a slight sensorineural hearing loss in the left ear at 4000 Hz.  Speech reception thresholds were 15 dB in the right ear and 10 dB in the left ear.  Discrimination scores were 100 percent in the right and left ears.  Pure tone and speech results were consistent.  

At a VA audiology examination in September 2011, audiogram results revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
15
20
LEFT
15
15
15
20
25

The examiner indicated that the test results were valid for rating purposes.  Speech discrimination scores were 100 percent in each ear.  Acoustic immittance and reflexes were normal.  The diagnosis was normal hearing bilaterally.  The examiner noted that the Veteran did not have any significant decrease in hearing loss since service.

Although the Veteran's ability to hear may have decreased since service, the evidence of record establishes that the level of hearing loss has not decreased to the point that it meets the criteria for consideration as a hearing loss disability for VA purposes under 38 C.F.R. § 3.385.  

Based on the foregoing evidence, the Veteran does not have a hearing loss disability for VA purposes.  At no time during the period covered by this appeal have the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) been 40 decibels or greater; and at no time during the period covered by this appeal have the thresholds for at least three of these frequencies been 26 decibels or greater; and, speech recognition scores have never been less than 100 percent during the entire period covered by this appeal.  38 C.F.R. § 3.385.  

As noted above, the threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss.  It is therefore acknowledged that the Veteran does exhibit some degree of hearing loss based on audiometric findings in September 2010 and September 2011.  Nonetheless, the regulations set forth in 38 C.F.R. § 3.385 operate to establish when a hearing loss can be service connected; i.e., when it is considered a "disability" for VA purposes.  In this case, the Veteran does show some hearing loss on examination, but his hearing loss is not considered by VA regulation to be severe enough to be considered a disability for purposes of establishing service connection at this time.

The Veteran has provided no audiometric findings to the contrary.  The doctrine of reasonable doubt has been considered, but the record does not provide an approximate balance of negative and positive evidence on the merits.  No reasonable basis has been identified for granting service connection for a hearing loss disability.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.385 (2012).

Sleep Apnea

In this case, the Veteran does not contend, nor does the evidence show, that the onset of sleep apnea occurred during his period of active service.  The service treatment records are negative for complaints, findings or a diagnosis of any sleep apnea condition whatsoever.  In addition, there is no competent postservice evidence indicating that the current sleep apnea began in or is related to service.  Accordingly, service connection on a direct basis is not warranted.  Moreover, as there is no evidence showing there may be relationship between service and current disability either through the submission of competent evidence or assertions of continuity of symptomatology, and as the Veteran does not assert that he had sleep apnea in service, an examination on this basis is not warranted.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Rather, the Veteran asserts that he developed sleep apnea in conjunction with his service-connected diabetes mellitus.  In other words, the Veteran seeks service connection for sleep apnea on a secondary basis.  Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability.  A disability that is proximately due to or the result of a service-connected disease or injury shall also be service connected.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc).

The record reflects that the Veteran was first diagnosed with diabetes in or around June 2005.  Service connection for the condition was granted, effective March 27, 2007, in an October 2007 rating decision.  In a February 2008 decision, and earlier effective date of July 15, 2005, was assigned.

According to a February 2008 memorandum from Dr. H, M.D., a VA doctor associated with a division of pulmonary/critical care/sleep medicine at a VA medical center, the Veteran was diagnosed with obstructive sleep apnea (OSA) in October 2007.  Dr. H. indicated that untreated OSA had been associated with worsening of underlying conditions such as diabetes mellitus and hypertension, thus, according to Dr. H, it was imperative that the Veteran receive treatment for OSA.  

Also submitted with this memorandum was a copy of an article regarding sleep apnea.  The article discussed a whether diabetes could be a cause of sleep apnea.  However, the article noted, that based on a small study, an exact relationship between sleep apnea and diabetes was unclear at this point.

In January 2008, the Veteran was fitted for a full face CPAP mask.  

In another memo, issued by Dr. H. in March 2008, it was noted that the Veteran had multiple medical problems to include Diabetes Mellitus.  According to Dr. H., it was well known that those who suffered from diabetes had an impaired system of calorie consumption and fat storage; and, those impairments often lead to obesity.  Likewise, medications used to treat diabetes, according to Dr. H., were also linked to further weight gain.  Dr. H. stated that the obesity that developed leads to other medical problems such as OSA, and that the Veteran has OSA.

At a February 2009 VA respiratory examination, the diagnosis was obstructive sleep apnea.  The examiner acknowledged the two memos from the Veteran's physician, as summarized above; and, specifically, that the March 2008 letter referenced diabetes and the medications for diabetes caused obesity; however, the examiner also pointed out that the Veteran in this case was not morbidly obese and as such, obesity was not the issue with the sleep apnea currently. 

With regard to Dr. H's February 2008 letter, which states that untreated obstructive sleep apnea has been associated with worsening of underlying conditions such as diabetes and hypertension, the examiner pointed out that Dr. H. did not say that hypertension and diabetes caused sleep apnea; but rather, that the untreated sleep apnea made diabetes and hypertension worse.  

The examiner also acknowledged a review of the documentation provided by the Veteran that appeared to come from the Internet, which referenced sleep apnea and other conditions.  (This is presumably the article discussed above).  In response, the examiner indicated that the medical literature did not support any cause for obstructive sleep apnea other than problems developing in the hypopharynx leading to blockage of the air passageways during sleep.  The examiner explained that in such conditions, a patient that is severely overweight can develop sleep apnea.  A condition such as hypertrophy of the tonsils can also cause obstruction of the airway passageways; however, according to the examiner, there is currently nothing in the medical literature that supports diabetes as the cause of sleep apnea.  The examiner therefore opined that the obstructive sleep apnea was not caused by or a result of the service-connected diabetes mellitus.  

In a February 2009 response, the Veteran reported that his previous weight was 172 pounds and his current weight was 205 pounds.  VA outpatient treatment records show, for example, that the Veteran's weight was 198 pounds in June 2009 and 204 pounds in September 2011.

In another memorandum dated in August 2009, Dr. H indicates that there is "growing evidence of a bi-directional link between diabetes and OSA; in other words, diabetes leads to the development of OSA, and OSA leads to the development of diabetes."  Based on this theory, Dr. H. opined that the Veteran's service-connected diabetes mellitus was, at least as likely as not, exacerbated by his OSA.  

At a September 2011 VA examination, the examiner noted the diagnosis of obstructive sleep apnea, which was confirmed by sleep study in 2007.  The Veteran used a CPAP machine.  The examiner specifically indicated that the Veteran was not obese, and as such, the service-connected diabetes did not indirectly aggravate the OSA through obesity.  Secondly, the examiner opined that the Veteran's OSA, which resulted in an inability to sleep through the night and daytime tiredness, was not permanently aggravated by diabetes mellitus.  The examiner based this opinion on the medical evidence of record, as well as his medical expertise.  The examiner explained that obstructive sleep apnea occurs due to passive collapse of the oro - and/or nasopharynx during inspiration while asleep.  It is caused by anatomical abnormalities (obesity, redundant tissue in the soft palate, enlarged tonsils or uvula, low soft palate, large or posteriorly located tongue) as well as neuromuscular disorders, and alcohol or other sedative use before bedtime.  The examiner also noted that although sleep apnea may be associated with aggravation of hypertension, the reverse was not true, i.e., high blood pressure is not documented to cause or aggravate obstructive sleep apnea.  Diabetes is not a cause, contributing factor or a documented associated condition of obstructive sleep apnea.  Due to the absence of a pathophysiological relationship between hypertension and diabetes actually causing sleep apnea, it is unlikely that either condition has affected (caused or aggravated) the Veteran's sleep disorder.  

Finally, at a November 2012 VA examination conducted in connection with another claim, the VA examiner listed all conditions recognized in the Veteran as having some association with diabetes.  Obstructive sleep apnea was not listed.  Further, the examiner commented that the Veteran's weight had not changed due to diabetes; he weighed 200 pounds.  

In sum, there is no evidence of record, aside from the Veteran's own belief, that his obstructive sleep apnea is caused by or aggravated by the service-connected diabetes mellitus.  Dr. H's multiple letters suggest only that the Veteran's diabetes mellitus is aggravated by the obstructive sleep apnea, not the reverse.  Because service connection has already been established for diabetes mellitus, it is irrelevant for purposes of this appeal as to whether the obstructive sleep apnea aggravates the service-connected diabetes mellitus.  Moreover, Dr. H notes that there is growing evidence of a bi-directional link between diabetes mellitus and obstructive sleep apnea, but does not point to any specific research to suggest that this growing evidence has ever been linked to any type of competent medical evidence.  The internet research that is submitted by the Veteran indicates that there may be some evidence to suggest that obstructive sleep apnea aggravates diabetes, but this evidence does not provide any competent evidence to show that the reverse is true.  Although the information submitted by the Veteran may suggest that research is pending in this regard, no such link has been established to show that diabetes causes or aggravates obstructive sleep apnea.  The VA examiner in February 2009 acknowledged the letters provided by Dr, H, and concluded that the Veteran's obstructive sleep apnea was not caused by the diabetes mellitus.  The Veteran was not shown to be obese, despite his claim that he had gained weight.  The most recent VA examiner in fact stated that there was no weight change attributed to diabetes.  The VA examiner in September 2011 also acknowledged Dr. H's letters and opinions, yet opined that the Veteran's diabetes mellitus did not aggravate the Veteran's obstructive sleep apnea.  The September 2011 examiner provided a complete medical/anatomical rationale for why sleep apnea occurs, and made clear that the onset of obstructive sleep apnea was unrelated to diabetes.  

Although the Veteran sincerely believes that his diabetes mellitus caused and/or aggravates his obstructive sleep apnea, his opinion in this regard is not probative because he is not competent to provide such a nexus opinion.  Although the Veteran is competent to report his observable symptoms associated with the obstructive sleep apnea, he is not competent to opine as to the etiology of the current obstructive sleep apnea in this case, as this is the type of medical question that is beyond the capability of a lay person's observation and thus requires medical expertise.  The two VA medical examiners' opinions that the current obstructive sleep apnea is neither caused by the service-connected diabetes mellitus nor aggravated by the service-connected diabetes mellitus are entitled to great probative weight as they are based on a review of the history and a physical examination, and as a rationale was provided for the opinions.  

The doctrine of reasonable doubt has been considered, but the record does not provide an approximate balance of negative and positive evidence on the merits.  No reasonable basis has been identified for granting service connection for obstructive sleep apnea.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).


ORDER

Service connection for hearing loss is denied.  

Service connection for sleep apnea is denied.  


REMAND

The Veteran seeks service connection for hepatitis and tinnitus.

With regard to the claim of service connection for hepatitis, the Veteran has alleged that beginning in November 2004, he has been told that he has both hepatitis A and hepatitis B.  He reported at his hearing, and to VA doctors, that he initially misunderstood his diagnosis and in fact has not been diagnosed with hepatitis C.  VA treatment records do not contain the referenced Agent Orange examination; additionally, although the record indicates the Veteran had been treated since September 2004, records are present only from November 2004 forward.  On remand, complete records should be obtained.

In August 2005, VA asked the Veteran to identify his risk factors for hepatitis; he did not respond directly to the inquiry, but has stated that he believes he contracted the infection from a bite he sustained in a fight aboard ship.  Records confirm the occurrence of the bite.  At the November 2010 Board hearing, the Veteran denied use of drugs and stated he had not received any transfusions until after he had been diagnosed with hepatitis.

In June 2011, the Board remanded the matter for an examination to clarify the current diagnosis and to obtain a medical opinion on causation which identified and discussed all potential risk factors.  An examination was conducted in September 2011.  Unfortunately, the examination is not adequate for adjudication; the examiner failed to discuss all potential risk factors as instructed.  Further, it appears the examiner may have applied an incorrect legal standard in opining regarding a nexus to service.  Although he refers to the "at least as likely as not" standard of proof, he states that there was no definitive way to prove the documented human bite caused hepatitis.  Remand is required to secure a compliant, adequate examination.

In connection therewith, the Veteran should be contacted to afford him an new opportunity to identify potential risk factors.

With regard to the Veteran's claim of service connection for tinnitus, he reported constant tinnitus at VA audiological examinations/consultations in September 2010, December 2010 and February 2011.  

At an audio examination in September 2011, the Veteran reported that he has tinnitus that comes and goes, and when asked to describe what it sounded like, he indicated that it sounded like the roaring of a sea shell.  The examiner indicated that the Veteran did not have tinnitus.  The examiner indicated that there was no evidence of a complaint of tinnitus in service, and tinnitus was not clinically present.  The examiner did not, however, explain how he came to the conclusion that tinnitus was not clinically present.  He also stated that there was no evidence of acoustic trauma during service.

This opinion fails to consider all competent evidence and information of record.  First, the Veteran is competent to report that he experiences tinnitus, as well as the frequency and severity.  The examiner's rejection of his competent report without explanation is incorrect.  Second, similarly, the examiner failed to discuss the Veteran's allegation of acoustic trauma as a spotter on Naval guns as part of his General Quarters duties.  Again, the Veteran is competent to report his duties, and his reports are not contradicted by the record.  A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination).  Dalton v. Peake, 21 Vet. App. 23 (2007).

VA must provide an examination that is adequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  In light of the inadequacy noted above, remand for a new examination, in which all relevant evidence is considered, is required.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request him to complete and return a VA Hepatitis risk factors questionnaire.

2.  Associate with the claims file complete VA treatment records from the medical center in San Antonio, Texas, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of September 2004 to November 2004, as well as updated records from 2011 forward.

The November 2004 VA Agent Orange registry examination and all associated testing must be specifically requested.

3.  After completion of the above, schedule the Veteran for a VA Liver, Gall Bladder, and Pancreas examination.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 

The examiner should conduct updated testing to identify the presence of any strain of hepatitis.  The examiner must take from the Veteran a history sufficient to identify potential risk factors for hepatitis, to include the documented in-service bite.  The examiner must then opine as to whether it is at least as likely as not that hepatitis is related service, in light of the identified risk factors.  

A full and complete rationale for any opinion expressed is required.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).  Jones v. Shinseki, 23 Vet. App. 382 (2010).

4.  Schedule the Veteran for a VA audio examination.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 

The examiner is advised that the Veteran has consistently reported tinnitus, manifested as a ringing in the ears or the sound of waves in a shell, for several years.  He has competently reported that he was exposed to noise from the firing of Naval guns aboard ship during drills and in support of ground forces in Vietnam.

The VA examiner should first state if the Veteran has a current diagnosis of tinnitus.  If the examiner finds that the Veteran's reported symptoms support a diagnosis of tinnitus, then the examiner should then opine if the Veteran's tinnitus is at least likely as not caused or aggravated by his active service. 

A full and complete rationale for any opinion expressed is required.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).  Jones v. Shinseki, 23 Vet. App. 382 (2010).

5.  Thereafter, the RO/AMC should review the claims folder to ensure that the foregoing requested development has been completed.  In particular, the RO should review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, the RO should return the report as insufficient.  See Stegall v. West, 11 Vet. App. 268 (1998).

6.  After completing any additional development deemed necessary, the RO should readjudicate the issues on appeal in light of any additional evidence added to the record assembled for appellate review.  If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the September 2012 SSOC, and provides an opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
	WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs