Citation Nr: 1330942 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-22 796 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to an initial rating in excess of 50 percent for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an April 2007 rating decision issued by the Regional Office (RO) in San Diego, California. The case comes to the Board from the RO in Los Angeles, California. The Veteran requested a hearing before the Board; however he failed to appear for his hearing. Therefore, his request is deemed withdrawn. The Board notes that the Veteran's representative has contended that the issue of service connection for tinnitus is currently on appeal, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, Clemons recognized that a claimant, as a layperson, is often unable to diagnose his own particular disability, so other disorders that may be productive of the same symptoms complained of by the claimant are considered to be encompassed in the appeal. It does not encompass all disorders that affect the same body systems, if the newly diagnosed disorder is not productive of the symptoms upon which the claim was based. Hearing loss and tinnitus are two separate disabilities that do not involve the same symptoms and they do not fall under the rule set forth in Clemons. The issue of service connection for tinnitus, raised by the Veteran's representative, is not before the Board at this time, as the agency of original jurisdiction (AOJ) has not yet adjudicated the claim. Therefore it is referred to the AOJ for initial action. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability for VA purposes. 2. The Veteran's sleep apnea was not shown to cause chronic respiratory failure with carbon dioxide retention or cor pulmonale or to require a tracheostomy, nor was it shown to present an exceptional disability picture. CONCLUSIONS OF LAW 1. A hearing loss disability was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). 2. The criteria for a rating greater than 50 percent for sleep apnea were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.100, Diagnostic Code 6847 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in August 2006 which explained how VA could assist him with gathering evidence in support of his claim. The August 2006 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability, as well as how VA assigns ratings and effective dates for service connected disabilities. The Veteran's claim for a higher rating for his sleep apnea is a downstream issue from his claim for entitlement to service connection for sleep apnea. The RO granted service connection for sleep apnea and assigned a 0 percent rating in an April 2007 decision. The Veteran then filed a notice of disagreement arguing that he should have received a higher rating. Subsequently, the RO increased the Veteran's rating for sleep apnea to 50 percent, effective the day after the Veteran's retirement from service. However, the Veteran did not indicate that he was satisfied with this rating. In these types of circumstances, VA is not required to issue a new VCAA letter. See VAOPGCPREC 8-2003. In this precedential opinion, the General Counsel held that although VA is required to issue a Statement of the Case (SOC) if the downstream issue is not resolved, 38 U.S.C.A. § 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. Here, the Veteran was sent an SOC that addressed the rating criteria for sleep apnea in April 2009. The Veteran was sent a supplemental statement of the case (SSOC) that addressed this issue in April 2010. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, private treatment records, and the written contentions of the Veteran. The Veteran was afforded a comprehensive audiological evaluation in September 2006 that adequately documented the degree of hearing loss experienced by the Veteran at thresholds from 500 to 4000 Hertz. The Veteran was not afforded an examination with respect to his sleep apnea. However, the evidence in the Veteran's treatment records is sufficient to establish the level of disability. A scheduler rating in excess of 50 percent for sleep apnea requires chronic respiratory failure, cor pulmonale, or tracheostomy and the Veteran's comprehensive treatment records do not show this. They also include pulmonary function testing showing that the Veteran does not meet these criteria. Moreover the Veteran has not alleged that he has any of these symptoms; rather his contention throughout this appeal, prior to being awarded the 50 percent rating, has been that he utilizes a CPAP, and neither he nor his representative have made any additional factual contentions in support of a higher rating. The Board acknowledges that the audiological examination and treatment records are several years old, but the Veteran has not contended that either his hearing or his sleep apnea subsequently got worse. For this reason, the Board does not find that new examinations are necessary in order to assess the Veteran's hearing loss and sleep apnea. Service connection The Veteran contends that he has a hearing loss disability that is related to his military service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases which are listed in 38 C.F.R. § 3.309, including organic diseases of the nervous system such as sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In most cases, establishing a nexus to service requires medical evidence. However, in the case of the chronic diseases set forth in 38 C.F.R. § 3.309, the requisite nexus may also be provided by evidence of continuity of symptoms. Walker v. Shinseki, 708 F.3d 1331 (2013). For the purpose of applying the laws administered by the V.A., hearing impairment is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of these thresholds 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 this case, the Veteran's DD-214 indicates that his military occupational specialty in the Air Force was Avionics Craftsman. The Veteran reported that he worked on the flight line. He also reported firing weapons in service. He used hearing protection and was in a hearing conservation program. He also engaged in recreational activities during service that involved loud noise. Noise exposure in service is conceded. However, despite his exposure to noise in service, the Veteran was not shown to have a current hearing loss disability. The Veteran had multiple audiograms in service that documented hearing levels from 500 to 6000 Hertz. None of these audiograms show hearing loss that meets the criteria of 38 C.F.R. § 3.385. The Veteran was afforded a VA contract audiological evaluation in September 2006. At that time, the Veteran reported that family members complained that the Veteran had hearing loss for the past five years. At that time pure tone thresholds (air conduction) were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 15 10 15 25 LEFT 35 20 15 10 25 Pure tone thresholds (bone conduction) were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 15 10 10 20 LEFT 30 15 10 5 20 The Veteran's speech recognition ability was 100 percent in the right ear and 100 percent in the left ear. The examiner diagnosed mild low frequency sensorineural hearing loss. The examiner opined that hearing loss was not likely due to noise exposure in service because of the low frequency nature of the hearing loss. Although the examiner diagnosed a mild low frequency sensorineural hearing loss, the audiometric findings and speech discrimination scores do not rise to the level of a hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385. The Veteran is competent to report that he has decreased auditory acuity. In fact, the audiometric examinations disclose that he has decreased acuity. But, there is a difference between hearing loss and hearing loss disability. We believe that the Court has given excellent guidance in this matter. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988)) Hensley v. Brown, 5 Vet. App. 155, 159 (1993). However, VA regulations establish when such hearing loss reaches the level of disability. Since the existence of hearing loss disability requires certain specific testing, the appellant is not competent to establish that he has disability as distinguished from just hearing loss. Nowhere in the claims file is a degree of hearing loss that meets the criteria of 38 C.F.R. § 3.385 documented. Absent a current hearing loss disability, service connection for bilateral hearing loss disability cannot be granted. The benefit of the doubt was considered. However, the weight of the evidence was against the Veteran's claim. Initial Rating The Veteran contends that the symptoms of his sleep apnea are worse than are contemplated by the currently assigned rating. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases, such as this one, in which a claim for a higher evaluation arises out of the initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Sleep apnea is rated pursuant to 38 C.F.R. § 4.100, diagnostic code 6847. A 50 percent rating is assigned when the disorder requires the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 percent rating is assigned when there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a tracheostomy is required. The evidence indicates that the Veteran does not meet any of the criteria for a rating in excess of 50 percent. Pulmonary function testing in October 2006 showed a slight obstructive pattern that normalized with use of a bronchodilator. A sleep study in June 2007 showed that with the use of a CPAP all disordered breathing events including apneas, hypopneas, and snoring were eliminated. Nowhere is respiratory failure, cor pulmonale, or tracheostomy documented at any time in the Veteran's treatment records, including at visits related to his sleep apnea. There is no evidence that the Veteran has chronic respiratory failure, cor pulmonale, or a tracheostomy. The Veteran has not contended that he has chronic respiratory failure, cor pulmonale, or a tracheostomy. His only contention during the course of this appeal is that he uses a CPAP machine, which is contemplated by the currently assigned 50 percent rating. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). Treatment records document that prior to being issued a CPAP machine, the Veteran experienced snoring and periods when he would wake up gasping for air. The June 2007 sleep study documented a good response to CPAP treatment and that all sleep disordered breathing stopped when the device was used. The Veteran has not contended that he has any additional symptoms of sleep apnea. No unusual symptoms of sleep apnea were documented. The Board considered the benefit of the doubt in this case. However, the weight of the evidence is against the Veteran's claim., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, a rating in excess of 50 percent for sleep apnea is denied. ORDER Service connection for a bilateral hearing loss disability is denied. A rating in excess of 50 percent for sleep apnea is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs