Citation Nr: 1315671	
Decision Date: 05/13/13    Archive Date: 05/15/13

DOCKET NO.  07-05 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for sleep apnea.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from February 1976 to February 1984.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In May 2010, as support for his claims, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) of the Board.  Thereafter, in December 2010, the Board remanded the claims to the RO via the Appeals Management Center (AMC) for further development and consideration - including especially having the Veteran undergo a VA compensation examination for a medical nexus opinion concerning the etiology of his bilateral hearing loss and sleep apnea, but particularly in terms of whether these claimed disorders are related or attributable to his military service.

The VLJ that had presided over his May 2010 hearing, however, and that had authored that December 2010 remand of his claims, is no longer employed by the Board, since having retired.  VA regulations require that the Judge who conducts a hearing on an appeal must participate in any decision made on that appeal.  38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012).  Consequently, in a letter dated January 26, 2012, the Veteran was notified of that Judge's retirement and of the consequent options, including the right to have another hearing before a different Judge that will ultimately decide the appeal.  In his February 2012 response, the Veteran indicated he wanted another videoconference hearing.  So, in March 2012 the Board again remanded these claims to the RO via the AMC for this additional hearing to be scheduled before deciding his appeal of these claims.  38 C.F.R. §§ 20.700(a), 20.704 (2012).


In a July 2012 letter, the Veteran was provided notice of the videoconference hearing to be scheduled in September 2012.  Thereafter, in August 2012, he was notified that his videoconference had been rescheduled for October 2012.  A subsequent November 2012 letter to him indicated that his hearing had been rescheduled again, this time for January 2013.  In January 2013, he provided a statement requesting that the Board instead render a decision on his appeal based on the existing evidence of record, including his prior hearing testimony.  Thus, he has withdrawn his request for an additional videoconference hearing.  See 38 C.F.R. §§ 20.700(e), 20.704(e) (2012).


FINDINGS OF FACT

1.  The most competent and credible, so ultimately probative, evidence indicates the Veteran does not have sufficient bilateral hearing loss to be considered a ratable disability for VA compensation purposes.

2.  The most competent and credible, so ultimately probative, evidence also indicates his sleep apnea did not originate during his active military service and is unrelated to his service.


CONCLUSIONS OF LAW

1.  He does not have a ratable bilateral hearing loss disability due to disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309, 3.385 (2012).

2.  His sleep apnea also is not due to disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified in part at 38 C.F.R. § 3.159.

Upon receipt of a complete or substantially complete application for benefits, VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must:  (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence he is expected to provide.

The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that to the extent possible the VCAA notice should be provided to the claimant before an initial unfavorable decision on the claim.  Pelegrini at 119-20.  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Here, in June 2005, prior to initially adjudicating his claims in the March 2006 rating decision at issue, so in the preferred sequence, the Veteran was provided notice of the VCAA.  The letter indicated the types of information and evidence necessary to substantiate the claims and the division of responsibility between him and VA in obtaining this supporting evidence, including lay evidence and both private and VA medical treatment records.  He also received notice in May 2006 concerning the "downstream" disability rating and effective date elements of his claims.  Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  As well, he since has been provided an SOC in January 2007 and SSOCs in November 2009 and November 2011 readjudicating the claims, so since even the provision of this additional notice regarding these "downstream" elements of the claims.  See again Mayfield and Prickett, supra.

And as concerning the duty to assist him with these claims, all relevant evidence necessary for an equitable resolution has been identified and obtained, to the extent possible.  The evidence of record includes his service treatment records (STRs), service personnel records (SPRs), private medical records, the reports of his VA compensation examinations, including the medical nexus opinions obtained, and statements and testimony from him and his representative.

The October 2010 VA audiology and respiratory system examination reports reflect that the examiners reviewed his medical history, documented his then current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Consequently, the Board concludes that the medical examinations are adequate for adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  


The Board remanded these claims in March 2012 for a videoconference hearing since the VLJ that had presided over the Veteran's prior videoconference hearing since had retired and because the Veteran, in response, had indicated he wanted another hearing.  But, as already explained, he apparently later changed his mind and ultimately withdrew his request for this additional hearing in his January 2013 statement.  So there was compliance with the Board's remand directive in trying to schedule this additional videoconference hearing, albeit ultimately to no avail.  See 38 C.F.R. §§ 20.700(e), 20.704(e) (2012); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance).  But see, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where Board's remand instructions were substantially complied with; in other words, there does not have to be "exact" compliance).

He was provided the VA audiology examination in October 2010 in response to his claim concerning this subject matter disability.  This VA audiology report indicates that the VA examiner was a licensed audiologist.  Also, the report shows the VA examiner elicited information from the Veteran concerning his history, subjective complaints, and the functional effects of his disability, which was all that the applicable provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 require.  Martinak v. Nicholson, 21 Vet. App. 447, 445 (2007).  Moreover, the objective data detailed in the October 2010 VA examination report was based on audiometric testing at the applicable frequencies and the CNC Maryland speech discrimination test.  Hence, the Board finds that the October 2010 VA audiology examination report may be accepted as adequate to determine the current disabling factors, if any, of the Veteran's claimed bilateral hearing loss, without further examination.  See 38 C.F.R. §§ 3.159(c) (4), 3.326 (2012).  Therefore, another remand is not warranted or justifiable.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).


Further regarding the Veteran's May 2010 videoconference hearing before a VLJ of the Board who since has retired, the transcript of that proceeding, which is still available, reflects that the VLJ conducted that hearing in accordance with the requirements that she "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position," pursuant to 38 C.F.R. § 3.103(c)(2), as explained by the Court in Bryant v. Shinseki, 23 Vet. App. 488 (2010).  According to the transcript, the presiding VLJ identified the material issue - entitlement to service connection for obstructive sleep apnea - and observed that the Veteran, through his representative, did not want to additionally testify during that hearing concerning the claim for service connection for bilateral hearing loss.  The VLJ discussed with the Veteran additional information regarding his alleged symptoms in service, their onset, and whether they existed prior to service or during his boot camp.  The VLJ also discussed the Veteran's duties in service, his separation from service, and any whether he had any irregular sleeping patterns at that time.  Thus, the Board finds that the VLJ's duties in 38 C.F.R. § 3.103(c)(2) were met and that the Veteran was not prejudiced by the hearing that was provided.  See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)).

The Veteran has not indicated that he has any further evidence to submit to VA or that VA needs to obtain.  There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained.  The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of this appeal.  All pertinent due process requirements have been met.  See 38 C.F.R. § 3.103 (2012).


Governing Statutes, Regulations and Precedent Cases

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - 
the so-called "nexus" requirement.  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show 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."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, 708 F3d. at 1336.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id. at 1339.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id. at 1338-40.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).  A particular type of hearing loss, namely, sensorineural hearing loss, as an organic disease of the nervous system, is however recognized as chronic under § 3.309(a) and therefore within the purview of the continuity of symptomatology pleading exception afforded by § 3.303(b).  The Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note:  "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  
M21-1MR III.iv.4.B.12.a.

Sleep apnea is not entitled to this same consideration, however.

In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002) (flatfeet); Falzone v. Brown, 8 Vet. App. 398 (1995) (tinnitus).  

However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  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 had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).

The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances:  (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

Analysis

Bilateral Hearing Loss

Regarding claims for hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  But before service connection may be granted for hearing loss, it must be of a particular level of severity to be considered an actual ratable disability.  Specifically, for purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies 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.


In statements and testimony presented during the pendency of this appeal, the Veteran has maintained that his current hearing loss is related to his active military service and, in particular, that he sustained acoustic trauma in service and that his hearing loss resultantly incepted during his service.

His STRs reflect that a January 1976 enlistment examination revealed normal findings of the ears and drums upon clinical evaluation, and audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
20
25
-
30
LEFT
25
30
20
-
25

So there was objective (audiogram) indication of pre-existing hearing loss in each ear when entering service - specifically, in the 500, 2,000 and 4,000 Hz frequencies for his right ear and in the 500, 1,000, and 4,000 Hz frequencies in his left ear, although he reported having no history of hearing loss in the January 1976 Report of Medical History.

The presumption of soundness when entering service attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected ("noted").  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id., at (b)(1).


That notation of pre-existing hearing loss in each ear, so bilaterally, when the Veteran was examined for acceptance or induction into the military in turn means that VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) do not apply, i.e., VA does not have to show by clear and unmistakable evidence both that he had this condition prior to service and that it was not aggravated during or by his service beyond its natural progression.  Instead, he, not VA, has the burden of showing a chronic worsening of this pre-existing condition while in service.  If, as here, a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability.  And in that case, § 1153 applies and the burden falls on him to establish aggravation.  Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  Independent medical evidence generally is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (all holding that mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with mere symptoms, has worsened).

Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service.  Only if the Veteran somehow manages to show a chronic worsening of his pre-existing condition during his service would the presumption of aggravation apply and, in turn, require the Board to show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression.  The presumption of aggravation applies only when pre-service disability increases in severity during service.  Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991).

"Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence.").  It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable."  Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

A July 1979 audiogram from some 31/2 years later revealed that the hearing threshold levels in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
35
25
-
25
LEFT
40
40
20
-
20

So the Veteran now had some measure of hearing loss in all frequencies tested as concerning his right ear (500, 1000, 2000 and 4000 Hz), and hearing loss in two of the four frequencies tested as concerning his left ear (500 and 1000 Hz).

In an April 1980 STR, he complained of having tinnitus in both ears for the past nine months and was diagnosed with a mild upper respiratory infection.  A subsequent April 1980 STR reflects that he complained of "hearing lost" in both ears and that he had worked in an armor unit in Germany and used to work around high intensity noise.  He also complained of having a ringing in both ears for about 10 months.  Objective findings revealed the ears were within normal limits and an audiogram card was noted to show hearing loss in the left ear.  He was assessed with "hearing lost?" and referred for an audiology consultation.

A May 1980 audiology consultation revealed a provisional diagnosis of bilateral hearing loss, although it was ultimately determined he had normal hearing in both ears and was nonetheless counseled on hearing conservation.  Audiometric testing in May 1980, pursuant to the May 1980 consultation, revealed that the hearing threshold levels in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
10
10
LEFT
10
5
10
10
10

So there was no suggestion of hearing loss in either ear in any of these frequencies that were tested (500, 1000, 2000, 3000, and 4000 Hz).

A May 1980 STR indicated the Veteran was at the audiology clinic that morning and was recommended an H-1 profile.  At that time it was noted that he appeared to have no difficulty hearing people talk in normal voices. He was assessed with hearing loss and H-1 hearing.  An audiogram was performed in July 1970, however, the results are in graphical form only.  His November 1983 separation examination revealed normal findings of the ears and drums upon clinical evaluation, and audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
5
5
10
LEFT
0
5
10
5
5

So he again had no hearing loss in either ear in any of the frequencies tested (500, 1000, 2000, 3000, and 4000 Hz).

He also reported having no history of hearing loss in the November 1983 Report of Medical History.

His military service ended in February 1984, so just a relatively short time later.

During his October 2009 RO hearing, he testified that his military occupational specialty (MOS) in service was supply sergeant and which was changed to "personnel records" when he got to Germany.  He reported that he was exposed to excessively loud noise during his service and sustained consequent injury (acoustic trauma) from cleaning arms, including M-16s.  He also testified that he went to sick call to complain of hearing problems and a ringing in his ears.  He stated that he had noticed his hearing had steadily declined since his service.  He reported he was not then currently being treated anywhere for his hearing loss and had not been prescribed hearing aids.  

During his October 2010 VA examination, his chief complaint was loss of hearing noted over the past six years, so dating back to 2004 or thereabouts.  He reported the effects on his occupational functioning and daily activities included that he could hear but did not understand what was being said and that he had trouble following directions.  He reported a history of military noise exposure from small arms fire and tanks.  He reported having no significant history of occupational noise exposure since service.  Recreational noise exposure included lawnmowers, trimmers, leaf blowers, power tools, chainsaws and motorcycles.  Audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
20
25
LEFT
15
10
5
15
15

The average pure tone threshold was 18 decibels for the right ear and 11 for the left.  Maryland CNC speech recognition scores were 96 percent in the right ear and 96 percent in the left ear as well.  The bone conduction scores were noted to be consistent with the air conduction scores.  The examiner noted the right ear results indicated hearing within normal limits from 250 to 4000 Hertz with mild loss at 6000 and 8000 Hertz.  Left ear results indicated hearing within normal limits.  The middle ear status was conformed as normal from tympanograms, both type A, and otoscopy was unremarkable, bilaterally.  The Veteran was diagnosed with hearing levels within normal limits bilaterally for frequencies of 500 to 4000 Hertz.  The examiner also noted that, while mild hearing loss was present above 4000 Hertz in the right ear, thresholds in that frequency range were not used in determining disability according to VA regulation (referring to 38 C.F.R. § 3.385).

So, after considering the evidence of record as a whole, the Board concludes that service connection for bilateral hearing loss is unwarranted simply because the Veteran has not shown he has sufficient hearing loss in either ear either currently or at any point since the filing of this claim to constitute an actual ratable "disability" according to VA standards, again, meaning according to the threshold minimum requirements of § 3.385.

The results of his October 2010 VA audiological examination fail to establish a ratable hearing loss "disability" involving either ear.  The results, instead, were only sufficient to establish tinnitus that since has been determined service connected.  Thus, since section 3.385, as relevant here, prohibits a finding of a "disability" due to impaired hearing where the requisite hearing status is not met, it is therefore apparent that any lesser hearing loss that has been shown does not constitute a presently existing ratable disability for which service connection may be granted, irrespective of whether the Veteran had any hearing impairment in either ear when entering service.

VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997).  The Court since has clarified that this requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to VA's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319 , 312 (2007).  Here, though, there simply is no showing the Veteran has had sufficient hearing loss in either ear at any point since the filing of this claim in June 2005 to constitute a ratable disability as determined by § 3.385.

In Brammer v. Derwinski, 3 Vet. App. 223  (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists].  A "current disability" means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

In Degmetich, it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders.  The Federal Circuit Court observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme.  Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability).  Simply put, in the absence of proof of present disability, namely bilateral hearing loss, there can be no valid claim.

The Board cannot reject the Veteran's lay testimony concerning this out of hand, especially since he is competent to say he has had difficulty hearing in both ears since his military service.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (indicating the Board cannot make categorical exclusions of competency of lay evidence, such as in this circumstance; rather, there has to be discussion of the reasons and bases for rejecting the lay evidence).  Cf. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence).  Ultimately, though, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).  

Notably, to the extent he attempts to specify that he had or currently has a ratable hearing loss "disability" for VA compensation purposes - again, meaning according to the threshold minimum requirements of § 3.385 - he is not competent to make this determination since it is based instead on the results of audiometric testing of his hearing acuity at the specified frequencies mentioned of 500, 1000, 2000, 3000, and 4000 Hz, so on objective rather than subjective data.  See again 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).  He and his representative acknowledged during the October 2009 RO hearing that he was not then currently being treated anywhere for his hearing loss and had not been prescribed hearing aids, either.  The Board observes that his bilateral hearing loss, per the most recent and only audiometric evaluation during the pendency of this appeal, does not satisfy the threshold minimum requirements of this VA regulation (§ 3.385) to constitute a ratable disability.  Moreover, the mere fact that he does not have a ratable disability in turn necessarily means there cannot be any attribution of this, for all intents and purposes, nonexistent disability to his military service, despite any findings of hearing loss prior to or during his service or any confirmed military noise exposure.

Consequently, his claim of entitlement to service connection for bilateral hearing loss must be denied since the preponderance of the evidence is against this claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


Sleep Apnea

In statements and testimony during the pendency of this appeal, the Veteran has maintained that his sleep apnea also is related to his military service.

His STRs reflect normal findings of the nose, sinuses, mouth, throat, lungs and chest upon clinical evaluation during his January 1976 enlistment examination.  He did not report any history of sleep apnea or other related respiratory problems in a January 1976 Report of Medical History.  In an April 1976 STR, he complained of chest pain and was diagnosed with bronchitis.  In May 1976 he complained of chest cold and pain with coughing.  X-rays at that time were clear.  In May 1978 he complained of chest pain, which was characterized and diagnosed as musculoskeletal pain.  A September 1978 STR shows he complained of chest pains when breathing and was diagnosed with musculoskeletal anterior chest spasm.  A subsequent September 1978 STR reveals he was again evaluated for chest pain on the next day and diagnosed with costochondritis.  The November 1983 separation examination revealed normal findings of the nose, sinuses, mouth, throat, lungs and chest upon clinical evaluation.  In a November 1983 Report of Medical History, he did not report any history of sleep apnea, however, he noted having a history of chest pain that he specified as sometimes having pain in the right chest since 1976, but that was unaffected by breathing and lasted less than one minute.

His military service ended in February 1984, so a short time later.

In a March 2005 private treatment report, he was diagnosed with mild sleep apnea.

In a June 2005 letter, a private physician reported that the Veteran was a patient in his care and had a long history of heavy snoring and headaches upon awaking from sleep.  He stated that, although the Veteran was only recently confirmed to suffer from obstructive sleep apnea, this condition had been present since early adulthood, greater than 25 years.

In a June 2005 lay statement, the Veteran's sister reported that they lived together in their parents' home during his military career.  She also stated that he snored very loudly when he was at home on leave and sometimes she would have to go to his room to wake him up.

Treatise information regarding sleep hazards included snoring and indicated that observed pauses in breathing, often accompanied by snoring, was a symptom of sleep apnea.  This information also indicated that sleepiness during the day was a sign that a person may be suffering from a sleep disorder, such as sleep apnea or narcolepsy or another treatable condition.

During his October 2009 RO hearing, the Veteran testified that he did not know he had difficulty sleeping in service, however he woke up with headaches and was tired all the time.  He reported that he saw a physician during service for the headaches.  He further testified that, following the conclusion of his service, he continued having problems with tiredness.  He reported he was first diagnosed with sleep apnea in 2006, after complaining of being tired and having headaches.  He testified that he had received treatment from private physicians for this condition and had submitted all of these treatment records to VA (so no additional records need to be obtained).  He acknowledged no physician had provided an opinion relating the current sleep apnea back to his time in service.  But he continued to maintain that he had sleeping problems during his service, which were manifested by difficulty sleeping, headaches, and waking up feeling tired and fatigued, and that he continued to have these same problems until sleep apnea eventually was clinically diagnosed years later.  He said he did not go to the doctor during those many intervening years about being tired during his service.

During his additional hearing, he testified that he worked in executive supply during his military service.  He stated he had problems with sleep in service, although he did not know he had these problems and it was normal for him to sleep that way.  He stated he went to sick call for headaches and his tongue, which would be hard, but he did not know he had sleep problems.  He stated the other soldiers in his platoon joked that he snored too loud.  He testified that he was never diagnosed with sleep apnea in service.  He reported that after service he started noticing he could not remember anything and had problems keeping his eyes open while driving.  He indicated he was provided a sleep study, diagnosed with sleep apnea based on the results, and resultantly provided a continuous positive airway pressure (CPAP) machine.  He reported current problems included falling asleep at his job and problems with his memory.  He also stated he had no symptoms of sleep apnea prior to entering the military, only instead experienced symptoms after he was on active duty, and that he was told by others in the military that he was snoring, and he did not have irregular hours of work during his service that could otherwise account for this.  He testified that he did not have sleep apnea prior to pulling all-night duty in service.  He acknowledged not reporting any symptoms related to sleep apnea during his military separation examination.

During an October 2010 VA examination, he reported having headaches, sluggishness, snoring, and stiffness of the tongue while in service.  He stated he was seen in sick call for headaches and complaints of problems with his tongue while in service.  He currently was diagnosed with mild sleep apnea, diagnosed in 2005 and used a CPAP machine nightly.  He stated his headaches had ceased, his sleep was much better, although he still had some residual tiredness.  He was diagnosed with mild obstructive sleep apnea.  The examiner opined that the Veteran's current diagnosis of sleep apnea was less likely than not caused by any treatment in service.  He pointed out the Veteran complained of chest pain in May 1976 and September 1978 and that he was diagnosed with costochondritis.  The examiner found there were no symptoms of snoring, tiredness or fatigue voiced.  He also noted that, although the Veteran did have some symptoms of coughing with green sputum production, chest wall pain that was non radiating and chest pain in inspiration, there was no documentation supporting a diagnosis of sleep apnea.  This examiner concluded there was no doubt or question regarding the Veteran now having sleep apnea, however, there was no concrete evidence in his service records to support a diagnosis or the etiology of sleep apnea being related to his service.


So, after considering the evidence of record as a whole, the Board concludes that service connection for sleep apnea is unwarranted.  Although, as even that VA examiner concedes, there is no disputing the Veteran has sleep apnea currently and has since at least 2005 or thereabouts, the most competent and credible (and therefore ultimately probative) lay and medical evidence of record does not provide the required linkage between his current sleep apnea and anything that occurred during his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  In considering the June 2005 letter provided by the Veteran's private treating physician and the October 2010 VA examination and opinion, the Board affords greater weight to the October 2010 VA examination and opinion as it was based on a review of the claims file, the Veteran's reported history, the examiner's own medical expertise, and was consistent with the other evidence of record.  Most significantly, the VA examiner provided explanation for his conclusions, whereas the private physician did not, only instead made a summary finding without any supporting rationale.  The discussion of the underlying rationale is where most of the probative value of an opinion is derived.  Indeed, review of the claims file does not substitute for a lack of a reasoned analysis and explanation for the opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion."  Bloom v. West, 12 Vet. App. 185, 187 (1999).


There is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors that have had occasion to treat or evaluate the Veteran over time.  See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993).  Indeed, to the contrary, although the Board may not ignore the opinions of treating clinicians, the Board is free to discount the probative value of these statements so long as the Board provides adequate reasons and bases for doing this.  Sanden  v. Derwinski, 2 Vet. App. 97, 100-01 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).

In addition, the Board observes that the June 2005 opinion of the private physician does not specifically relate the Veteran's sleep apnea to his active military service, rather, this doctor merely stated this condition had been present for greater than 25 years, but since early adulthood.  Hence, even given this lengthy history of this condition, there is no association of this condition necessarily with the Veteran's military service and, in fact, there is suggestion it may have even preceded it.  In any event, no reasons or bases for this conclusion were provided, so no supporting rationale as to why the sleep apnea did or did not incept during the Veteran's military service.  It equally is unclear whether this private physician's opinion was based on the Veteran's self-recounted history, alone, or whether this doctor himself reviewed any records or treatise information.

In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran.  Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.  Here, though, it is unclear to what extent this doctor relied on the Veteran's self-recounted history, but even to the extent he did he did not, in turn, indicate the Veteran's sleep apnea had originated during his military service.


The Board therefore is affording the October 2010 VA examiner's opinion greater probative weight than the June 2005 opinion of the Veteran's private treating physician.  Thus, although there is no doubting the Veteran has sleep apnea, he does not also have the supporting medical nexus evidence etiologically linking his sleep apnea to his military service.  See again Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  The October 2010 VA examiner opined the Veteran's current diagnosis of sleep apnea was less likely than not caused by any treatment in service.  Lack of treatment, alone, is not reason enough to conclude the Veteran did not have sleep apnea during his service.  See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence).  But the Court also has recognized that, for non-combat Veterans (such as this Veteran) providing non-medical related lay testimony regarding an event during service, Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  Indeed, even in Buchanan the Federal Circuit Court accepted that the Board could weigh the absence of medical evidence against any contrary lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").


The VA examiner's opinion contains the required discussion of the underlying basis for the conclusion and resultantly has greater probative weight than the June 2005 opinion by the Veteran's private treating physician that is deficient in this critical regard.  The VA examiner explained why there is reasonable expectation of there being some objective indication of the signs and symptoms commonly associated with sleep apnea to conclude the Veteran had sleep apnea during his service, so in the absence of these traditional signs or symptoms, the VA examiner's opinion was not so much just predicated on the absence of treatment, but also on the absence of any relevant symptoms during the Veteran's service, including when he was treated for what ultimately was determined to have been costochondritis, not sleep apnea.

The post-service medical evidence of record also does not show evidence of complaints or treatment for sleep apnea until 2005; so not until approximately 21 years after the Veteran's separation from service.  And while this, alone, is not altogether determinative or dispositive of whether he had sleep apnea during those several intervening years dating back to his service, it is nonetheless probative evidence tending to refute this notion.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability).

The Board acknowledges the lay statements and testimony by the Veteran and his sister attesting that he had headaches, snoring, tongue problems and daytime fatigue which began during his service and that he has continued to experience these symptoms ever since.  Both of them are competent to make these proclamations.  The Board cannot reject this lay testimony concerning this out of hand.  Kahana v. Shinseki, 24 Vet. App. 428 (2011) (indicating the Board cannot make categorical exclusions of competency of lay evidence, such as in this circumstance; rather, there has to be discussion of the reasons and bases for rejecting the lay evidence).  Ultimately, though, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).  

Moreover, to the extent their lay statements are attempting to ascribe these certain symptoms to a particular or specific diagnosis, including sleep apnea, they are not competent to make this distinction.  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 had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).

Ultimately, the lay statements (and testimony) regarding a continuity of symptoms since service, even to the extent competent, are not credible as they are inconsistent with the contemporaneous service records and post-service medical evidence.  Thus, these lay statements and testimony are not ultimately probative.  Notably, the rather recently reported history of a continuity of snoring, daytime fatigue, tongue problems and headaches in service and since that time is not supported by the Veteran's STRs and the post-service medical evidence.  See Cromer v. Nicholson, 19 Vet. App. 215 (2005).  His STRs demonstrate treatment for chest pains in 1976 and 1978 that was associated with chest cold, bronchitis, musculoskeletal chest pains and costochondritis; however, at no time were these symptoms ever associated with sleep apnea.  Moreover, the STRs do not reflect at any time that he was treated for headaches, daytime fatigue, tongue problems or snoring in service, and he did not report any history of these symptoms and specifically denied having any history of headaches, ear, nose or throat trouble, or frequent trouble sleeping in the November 1983 Report of his Medical History.  

In fact, there was no suggestion of sleep apnea until the March 2005 private treatment report indicating a diagnosis of mild sleep apnea following a sleep study.  

The medical records cited are highly probative both as to his subjective reports and their resulting objective findings.  They were generated with a view towards ascertaining his then state of physical fitness and are akin to statements of diagnosis or treatment.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  Accordingly, the lack of contemporaneous evidence in this instance diminishes the reliability of the lay statements and testimony provided by the Veteran and his sister long after the fact and they are afforded no probative value.

The Board also observes that the treatise information, provided in June 2005, only indicated that sleep hazards included snoring, that observed pauses in breathing often accompanied by snoring was a symptom of sleep apnea, and that sleepiness during the day was a sign that a person may be suffering from a sleep disorder, such as sleep apnea or narcolepsy or another treatable condition.  While this information generally provides symptoms of snoring and pauses in breathing as symptoms of sleep apnea, the Board already has acknowledged that the Veteran has sleep apnea, so in effect already has conceded that he experiences these types of symptoms commonly associated with or indicative of this condition.  With respect to the alleged snoring in service, the Board observed the lay statements regarding a continuity of snoring since service have been afforded no probative value.  In addition, with respect to the treatise information discussing daytime sleepiness as being indicative of several disorders, including sleep apnea, the Board observes that such information does not relate the Veteran's current sleep apnea to his military service and greater weight has been afforded to the October 2010 VA examiner's opinion, which has been found to be most persuasive on this determinative point and disassociates the current sleep apnea from service.

The internet or medical treatise evidence that has been submitted does not reference the specific facts of this particular case, so is less probative than the VA examiner's unfavorable opinion.  Where medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion, a claimant may use such evidence to meet the requirement for a medical nexus.  See Wallin v. West, 11 Vet. App. 509 (1998).  However, an attempt to establish a medical nexus between service and a disease or an injury solely by generic information in a medical journal or treatise "is too general and inclusive."  Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element).  Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional.  Mattern v. West, 12 Vet. App. 222, 228 (1999).  See also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility").  But, here, there is not this required supporting medical comment from a doctor since the statement from the Veteran's private treating physician has been discounted and the VA examiner's opinion, which considered this medical treatise evidence, is unfavorable to the claim.

For these reasons and bases, the evidence does not demonstrate any connection between the Veteran's sleep apnea and his military service.  Thus, his claim of entitlement to service connection for this condition must be denied since the preponderance of the evidence is against his claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

The claim for service connection for bilateral hearing loss is denied.  

The claim for service connection for sleep apnea also is denied.  



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs