Citation Nr: 1312867 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-06 161 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a sleep disability, to include as secondary to a service-connected psychiatric disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty in the Army from February 1952 to December 1953, and in the Air Force from September 1954 to January 1958 (and had Reserve service between the two periods of active duty). These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Cleveland, Ohio RO. The claims file is now in the jurisdiction of the Roanoke, Virginia RO. In August 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. At the hearing the Veteran requested, and was granted, a 60 day abeyance period for the submission of additional evidence; such additional evidence was received without a waiver of RO consideration. In November 2012, the Board remanded the matters for additional evidentiary development. The November 2012 Board decision also remanded claims of service connection for fungus of both first toenails, residuals of cold weather injuries to both upper extremities, residuals of cold weather injuries to both lower extremities, and psychiatric disability, to include depression, anxiety, and posttraumatic stress disorder (PTSD). A February 2013 rating decision granted service connection for eczema, with urticaria and dystrophic nails (residuals of cold weather injuries to both upper extremities and both lower extremities), and for PTSD and assigned disability ratings and effective dates for the awards. The Veteran has not expressed disagreement with that rating decision, and these matters are no longer before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss and tinnitus were not manifested in, and are not shown to be related to, his service. 2. An organic sleep disability was not manifested in service and is not currently shown; the Veteran's current sleep impairment is part and parcel (a symptom) of his service-connected PTSD (and considered in the rating for such disability), and is not shown to be a separate and distinct disability entity. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss and tinnitus is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. Service connection for a sleep disability, including as secondary to service connected PTSD is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. An April 2008 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. Significantly, during the August 2012 Travel Board hearing before the undersigned, the Veteran was advised of what he still needs to substantiate the claims; his testimony reflects that he is aware of what he still needs to substantiate his claims. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA audiological evaluations in August 2010 and December 2012, which will be discussed in greater detail below, though the Board finds these examinations (cumulatively) to be adequate as they included both a review of the Veteran's history and audiological examinations that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) Whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain chronic diseases were manifested during an applicable postservice presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Veteran has not been afforded a VA examination specifically in connection with his claim of service connection for a sleep disability. However, the Board finds that such examination is not necessary, as the examiner on VA psychiatric examination in December 2012 opined, with explanation, that the Veteran's disturbed sleep complaints are manifestations of his service connected psychiatric disability (which are considered in the rating for such disability). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 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, (e.g., a broken leg), (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). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including via Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. The Board also notes at the outset that the Veteran served in combat, and is entitled to the relaxed evidentiary standards afforded under38 U.S.C.A. § 1154(b). However, it is not alleged that hearing loss, tinnitus, or a sleep disability became manifest following combat/combat noise trauma and have persisted since. Hence, the dispositive question is one of nexus between a current disability and remote service/event(s) therein. That is a medical question in nature, and § 1154(b) has no applicability in these matters. Hearing loss and tinnitus Because sensorineural hearing loss (SNHL) is an organic disease of the nervous system, it may be service connected on a presumptive basis if manifested to a compensable degree in the first year following a veteran's discharge from active duty. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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. Hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection for such disability to be granted. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of postservice evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a hearing disability must show, as is required in any claim of service connection, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. The Veteran claims that his current hearing loss and tinnitus arose as a result of his exposure to noise trauma in service. His service personnel records indicate that he received a Combat Infantryman Badge. Consequently, it is amply demonstrated, and not in dispute, that he was exposed to combat noise trauma in service. 38 C.F.R. § 1154(b). The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis pertaining to hearing loss or tinnitus. On January 1958 service separation examination, his hearing was within normal limits (10 or 15 decibel puretone thresholds at all thresholds between 500 and 4000 Hertz). Postservice treatment records include employment audiology records from 1980 through 1991, which reflect gradually worsening high frequency hearing loss. On August 2010 VA examination, the Veteran complained of constant ringing in his ears and reported that he sometimes had trouble understanding speech clearly. He could not remember the first time he noticed his hearing loss or his tinnitus. The examiner noted that the Veteran was exposed to combat noise in service; as a civilian, he worked as a painter at a paper mill with limited occupational noise exposure, and he did not report a history of hunting and/or use of firearms on a recreational basis. The Veteran denied any history of ear infections, ear surgery, or family hearing loss. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 25 25 40 75 85 Left 30 35 30 70 75 The average puretone thresholds were 56 decibels for the right ear and 53 decibels for the left ear. Speech audiometry revealed speech recognition ability of 80 percent in each ear. The diagnosis was hearing acuity within normal limits through 1000 Hertz, sloping to a severe high frequency sensorineural hearing loss in the right ear, and a mild to profound sensorineural hearing loss from 500 to 8000 Hertz in the left ear. The examiner opined that the tinnitus is as likely as not a symptom associated with the Veteran's hearing loss. The examiner noted that the Veteran's last separation physical from 1958 indicated hearing within normal limits bilaterally from 250 to 8000 Hertz and there is no evidence of a hearing loss while in the military. The examiner opined (with no further rationale) that the Veteran's hearing loss is less likely as not the result of or caused by the noise he was exposed to during his military service. At the August 2012 Travel Board hearing, the Veteran testified that after service he worked as a painter at a paper mill. In November 2012, the Board found the August 2010 VA examination to be inadequate, as it included no rationale to support the negative nexus opinions. The Board remanded the matters to afford the Veteran a new VA audiological examination. On December 2012 VA examination, the examiner noted that the Veteran's hearing loss impacts the ordinary conditions of his daily life, and his ability to work. The Veteran reported that the tinnitus began "years ago" but did not relate the tinnitus to any one specific injury or blast. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 30 30 45 75 80 Left 30 25 35 65 75 Average puretone thresholds were 58 decibels for the right ear and 50 decibels for the left ear. Speech audiometry revealed speech recognition ability of 82 percent in the right ear and 80 percent in the left. The diagnosis was sensorineural hearing loss (SNHL) bilaterally. The examiner opined that based on a review of the claims file the Veteran's hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner noted that an audiometric hearing test documented in the claims file, marked as "separation", and dated January 15, 1958 shows the Veteran's hearing was within normal limits; while there is no audiometric test at the time of induction with which to compare any change in hearing between induction and separation, the examiner opined that it is not likely that there was any change in hearing between induction and separation that was more than what would be considered normally occurring, since most thresholds do not exceed 10 decibels at the time of separation. The examiner opined that since hearing loss due to noise occurs at the time of the exposure and not subsequently, the Veteran's current loss is less likely than not caused or a result of active duty noise exposure. The examiner opined that the Veteran's hearing loss was more likely caused by exposures or unrelated causes that occurred after his military service. Regarding tinnitus, the examiner opined that it is at least as likely as not a symptom associated with the diagnosed clinical hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner opined that the tinnitus is less likely than not caused by or a result of military noise exposure; the examiner noted that there is no evidence of tinnitus treatment or complaints in the Veteran's STRs, and no report of a specific noise event or injury on active duty that initiated tinnitus. The examiner noted in addition that with normal hearing at separation, there is no evidence of ear damage from noise in the STRs; for these reasons, the examiner opined that it is less likely as not that the Veteran's tinnitus is related to military noise exposure. It is not in dispute that the Veteran now has bilateral SNHL and tinnitus. A hearing loss disability (by VA standards) was confirmed by VA audiometry; and tinnitus is a disability the existence of which is essentially established by subjective complaints (the record provides no reason to doubt the Veteran's accounts that he now has tinnitus). However, as neither disability is shown to have been manifested in service or in the first postservice year, service connection on the basis that these disabilities became manifest in service, and persisted or on a chronic disease presumptive basis (for SNHL as an organic disease of the nervous system under 38 U.S.C.A. §§ 1112, 1137) is not warranted. What remains for consideration is whether the bilateral hearing loss and tinnitus are somehow otherwise shown to be etiologically related to the Veteran's service. The only competent medical evidence in this matter consists of the reports of the two VA examinations. The Board finds the VA examinations to be entitled to great probative weight, as they reviewed the Veteran's entire medical history and statements included in the claims file, reviewed all earlier audiometry and audiological evaluations/opinions, and explained in full the rationale for the conclusions reached, citing to accurate factual data, considered all possible etiological factors for the Veteran's hearing loss, explaining the reason why the evidence supported one factor more than others, and cited to a lack of support in medical literature for a nexus between a fairly recent appearing hearing loss and remote noise trauma, and the lengthy intervening period between any noise exposure during the Veteran's service and his current hearing loss and tinnitus before hearing loss complaints were noted postservice. In light of the foregoing, the Board finds that the preponderance of the evidence is against these claims. Therefore, the appeal in these matters must be denied. Sleep disability Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury 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 medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006, 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). Evidence of record, including VA and private treatment records, shows that the Veteran receives treatment for PTSD, the symptoms of which include sleep impairment. The Veteran's STRs are silent for any complaints, diagnoses, or treatments for a sleep disability. On service separation examination in January 1958, the Veteran's respiratory system was normal on clinical evaluation. Furthermore, postservice evaluation/treatment records provide no indication that an organic sleep disability, such as sleep apnea, has been diagnosed and directly related to the Veteran's service; again, it is not alleged otherwise, and direct service connection for such disability (i.e., on the basis that it was incurred or aggravated in service) is not warranted. The Veteran's theory of entitlement to the benefit sought is essentially one of secondary service connection. Service connection has been established for eczema with urticaria and dystrophic nails, as well as PTSD. It is neither alleged, nor suggested by the record, that the claimed sleep disability was caused or aggravated by eczema with urticaria and dystrophic nails. The Veteran seeks service connection for a sleep disability on the basis that it was caused or aggravated by his service-connected PTSD. At the August 2012 Travel Board hearing, the Veteran testified that he had never undergone any sleep studies. The undersigned informed the Veteran that sleep disturbances secondary to a psychiatric disability (identified as symptoms of a psychiatric disability) are rated as part of the psychiatric disability according to the rating criteria. See 38 C.F.R. § 4.130, General Rating Formula for Sleep Disorders (listing sleep impairment as a criterion for the 30% rating assigned for the Veteran's PTSD). The Veteran's postservice medical records include complaints of sleep impairment as a symptom of psychiatric disability. On December 2012 VA psychiatric examination, the diagnosis was PTSD. The Veteran's symptoms were noted to include difficulty falling or staying asleep, and chronic sleep impairment. He reported having war nightmares about once a month, and his sleep was poor. He reported that he falls asleep fine but awakens about three hours later and then "tosses and turns". He estimated getting only four hours of sleep, although he gets through the day well enough and does not nap. To the extent that the Veteran seeks to have his symptoms of sleep impairment service connected, the matter is moot-as they are considered service connected (as a symptoms of PTSD), and are considered in the rating for PTSD. To the extent that what he seeks is a separate compensable rating for the sleep impairment, such is specifically prohibited by regulation (See 38 C.F.R. § 4.14 (which prohibits rating the same symptoms twice under different diagnoses). In summary, the evidence does not indicate that the Veteran has a sleep disability entity that is separate and distinct from the chronic sleep impairment symptoms due to PTSD. The existence of such a current chronic disability is a threshold requirement in a service connection claim. See 38 U.S.C.A. § 1110. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a sleep disability. Accordingly, the appeal in the matter must be denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for a sleep disability, including as secondary to service-connected PTSD, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs