Citation Nr: 1334298 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-26 481A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable disability rating for bilateral hearing loss. 2. Entitlement to service connection for a sleep disorder, to include sleep apnea. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. M. Johnson, Associate Counsel INTRODUCTION The Veteran had active service from December 1966 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) as an appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in May 2010 and February 2011. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. FINDINGS OF FACT 1. Objective audiological findings confirm that the Veteran has level II hearing in his left ear and level I hearing in his right ear. 2. There is no evidence of an exceptional pattern of hearing loss, and in consideration of the effect of the disability on functional impairment and the activities of daily living, there is nothing so unique as to require additional development regarding consideration of an extraschedular rating. 3. There is no evidence of record that the Veteran has a current sleep disorder at this time. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.321, 4.85, 4.86 (2013). 2. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initial Increased Rating for Bilateral Hearing Loss Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation 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 determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). On a claim that arises from an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). In the instant case, there is no evidence that the disability has significantly changed and a uniform evaluation is warranted. Evaluations for bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from the Veteran's hearing loss, the rating schedule establishes 11 auditory acuity levels, designated from level I for slightly impaired hearing acuity through level XI for profound deafness. Further, schedular disability ratings for hearing impairment are "derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Veteran's bilateral hearing loss disability is service-connected; however, it has not been found to be severe enough to warrant compensation. The Veteran asserts that due to the severity of his condition a compensable rating is warranted. Despite the alleged severity of the Veteran's condition, the only audiological evaluation of record is a VA examination from April 2010. The results of the April 2010 exam are as follows: HERTZ Average 1000 2000 3000 4000 RIGHT (47.5) = 48 25 30 70 65 LEFT (57.5) = 58 25 45 85 75 Speech recognition, performed with the Maryland CNC word list, was determined to be 94 percent in the right ear and 96 percent in the left ear. It is necessary to apply the criteria found in 38 C.F.R. 4.85 at Table VI to the Veteran's audiological examinations of record. In so doing, and in taking the worst scores in the evidentiary record into account, the results yield a numerical designation of I for the right ear (between 42 and 49 average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination), and a numerical designation of II for the left ear (between 58 and 65 average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination). Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation, providing evidence against this claim. Applicable regulations do allow some flexibility in rating what is categorized as "exceptional" hearing loss; however, the evidence of record does not support a finding of "exceptional" hearing loss in the current case. Specifically, the regulatory-defined "exceptional" patterns (puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz) are not found in this case. See 38 C.F.R. § 4.86. Based on these findings, the Board finds that the Veteran's current noncompensable rating is correct, and a higher initial disability rating, on a purely schedular basis, is not warranted. While a higher schedular rating is not warranted, the Board must evaluate if the circumstances of the Veteran's disability picture are unique enough to merit a remand for a referral to the Director of VA's Compensation Service for consideration of an extraschedular rating. In this regard, the Board notes that, in accordance with judicial precedent, it is necessary for VA examiners to consider the impact of hearing loss on functional impairment and activities of daily living when evaluating a Veteran. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The schedular requirements for a higher evaluation for hearing loss still rely on a mechanical application of the rating schedule; however, should the impact of hearing loss have a significant impact on daily functioning (e.g. impact employment, ability to care for oneself, etc.), it is proper to consider these factors on an extraschedular basis. Generally speaking, an extraschedular rating should be considered when the manifestations of a service-connected disability are so unique as to be outside the norm of what is contemplated in the established rating criteria. See Thun v. Peake, 22 Vet. App. 111 (2008). The impact of the service-connected hearing loss on the Veteran's functioning/daily activities was fully considered in the May 2010 VA examination. Indeed, the examiner noted that there was difficulty in hearing and understanding conversation associated with the hearing loss disability. It appears that the Veteran does not currently work, but there has been no allegation that this is due to the hearing problem (or indeed, as due to any type of disablement). The examiner specifically noted that the Veteran worked as a pipe fitter for 27 years while using hearing protection and reported no impact on his employment due to hearing loss. Thus, at this time, there is nothing of record suggesting that the hearing loss disability markedly interferes with the Veteran's occupational functioning. Therefore, the VA examiner of May 2010 complied with the duty to consider the impact of activities of daily living, and the Board notes that this evidence does not suggest a disability picture so unique as to warrant a referral to the VA's Director of Compensation for consideration of an extraschedular rating. See Martinak at 455-56; see also Thun at 111. The Board has also considered whether the Veteran's service connected hearing loss has caused him to be unable to gain and maintain employment, but there is nothing in the record that would suggest such a finding. Accordingly, an implied claim of TDIU (total disability based on individual unemployablity due to service connected disabilities) has not been raised by this record as part and parcel of the claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Indeed, by all accounts, the Veteran stopped working after 27 years on his own accord with no relation to any type of disability. While the Veteran has difficulty hearing people speak and participating in conversations, such difficulties are fully considered in the regulatory-established schedular criteria, and such symptoms are carefully contemplated by the assigned noncompensable rating. Therefore, based upon the evidence of record at this time, the Veteran's bilateral hearing loss disability does not meet the criteria for a compensable evaluation, and must be denied at this time. Entitlement to Service-Connection for a Sleep Disorder Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The condition at issue is not a regulatory-established "chronic disease." As such, it cannot be presumed to have been incurred in active service if manifest to a compensable degree within the first post-service year, and further, continuity of symptomatology, without an established nexus to service, in not enough to warrant service connection. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. 38 U.S.C.A. § 1110. Thus, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[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 disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Veteran seeks service connection for a sleep disorder, to include sleep apnea. The Veteran contends that he has a current sleeping disorder due to the type of jobs he performed while in active duty. The Veteran's DD-214 indicates that he was a Boatswain in the Navy, to include foreign service. He gave a history of performing the duties of a Tug Boat Engine Operator and working a 100-ton crane while in-service at VA examinations in 2010. The Veteran has not provided any further evidence, including through his own statements, as to why his in-service duties would have caused a current sleep disorder. Simply, he asserts that he currently experiences some sort of current sleeping difficulties that should be attributed to his military service. In an April 2012 clinical note contained in the electronic Virtual VA portion of the claims file, the Veteran indicated that he had a sleep study performed at a private medical facility in July 2011. The Veteran indicated that the study yielded normal results, which would only provide evidence against this claim. Further, while the Veteran did make some complaints of difficulty with nightmares and "gasping for breath," at no time was the Veteran assessed with a sleep disorder by a VA or private medical provider. Here, the Board notes that the record of the alleged July 2011 sleep study has not been obtained; however, by the Veteran's own admission, such a record would not, even if produced, document a diagnosis of a current sleep disorder. The Veteran is competent to report that which comes to him through his senses, and in that regard, can certainly report that he may have exhibited some symptoms that make sleep difficult from time to time. Nonetheless, such symptomology, without an underlying diagnosis, does not constitute a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Quite simply, despite the Veteran's claim of a current sleep disorder, there is no credible evidence of record to indicate that he has a current sleep disorder. The Veteran's in-service activities do not, on their own, draw inference of a sleep disorder, and, according to the Veteran's own words, he was assessed as "normal" with regard to sleep difficulties as recently as 2011. As such, the Veteran's assertion that he has a current sleep disorder is outweighed by this lack of any objective evidence that his current has such a problem. Simply put, while the Veteran may, at some point, have problems sleeping, the Veteran has put forth no allegation of any type of an objective chronic sleep disorder, and any further development on this contention would be futile (i.e. he himself has asserted that the only treatment for sleep problems yielded normal findings, providing factual evidence against his own claim). The Board must have some evidence of disability. At this time, the Board simply has no disability it may grant service connection for. Applicable law requires a VA examination when (1) there is competent evidence that a claimant has a current disability, or persistent or recurrent symptoms of disability; (2) the evidence establishes an "in-service event, injury or disease," or a disease, manifested in accordance with presumptive service connection regulations, which would support incurrence or aggravations; (3) the evidence indicates that the current disability may be related to the in-service event; and (4) insufficient medical evidence for VA to make a decision. See 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2011); McClendon v. Nicholson, 20 Vet. App. 79 2006). The Board recognizes that the Veteran in question has not been afforded a VA examination with regard to this condition. However, as the evidence of record, including the Veteran's own description of his treatment, does not, even potentially, indicate that a current disability exists, there is no need to obtain a VA examination in this case. Id. Simply put, the evidence of record weighs against a finding that the Veteran currently experiences a sleep disorder. The Veteran's own statements include an admission of recent normal sleep findings, and he has not put forth any evidence showing ongoing treatment for any sort of sleep disorder. The Veteran has been examined by VA in clinical settings, and at no time, even after reporting some symptoms of disturbed sleep was a diagnosis of a current sleep disorder entered. As this most basic element of a claim for service connection has not been met, the claim must be denied. See Brammer, at 225. In reaching the above determinations, and with respect to the claims on appeal, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in the above-referenced claims for an initial increased rating and service connection because the preponderance of the evidence is against the Veteran's claims. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duty to Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, the Veteran was provided with notice in January 2010 and November 2010 with regard to his bilateral hearing loss claim and his sleep disorder claim respectively. In both instances, he was informed of what evidence VA would provide and what evidence he should supply in support of his claim. The Veteran was specifically informed as to how disability ratings are assigned based on the severity of the service-connected disability and how service connection is established. Additionally, he was also informed as to how effective dates are assigned. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by the Texas Veterans Commission, and that organization is presumed to have knowledge of what is necessary to substantiate a claim for both a higher disability evaluation for hearing loss and for service connection for a sleep disorder. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes all relevant service treatment records and pertinent post-service medical records that address complaints of decreased hearing acuity or problems sleeping. Furthermore, the Veteran has been afforded a comprehensive VA audiological examination, which addressed his complaints hearing-related complaints. The May 2010 hearing examination utilized the approved regulatory testing criteria and provides a current description of the disability picture. As the Veteran has not alleged or provided evidence of a worsening condition, it is adequate for rating purposes. While in this case the Veteran has not been provided with a VA examination to address etiology and the existence of a current sleep disorder, as discussed in detail above, the evidence of record does not, even potentially, suggest that the Veteran currently experiences an objective sleep disorder. As such, there is no jurisprudential duty to provide a VA examination. See McClendon at 79. Further, while the Veteran has indicated the potential existence of a private audiological evaluation in 2011 that is not in evidence that would support his claim. The Board also notes that the duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the Veteran, in November 2011, sent notice that he had undergone a hearing evaluation indicating the severity of his condition, but did not provide VA with a copy of this evaluation or when it was done. The Veteran has not provided any information regarding the location and date of this alleged evaluation, and he did not provide VA with information about where this alleged evidence could be obtained. Regarding his hearing, the Veteran has not alleged any change of condition since his prior 2010 evaluation, and there is no reason to assume that the alleged private audiological evaluation would, by necessity, provide results different than the May 2010 examination. In that regard, the Board is satisfied that it has the most current assessment of the disability picture for hearing loss, and there is no need to obtain another VA examination addressing the severity of the Veteran's condition. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Indeed, as noted in detail above, the Veteran simply contents that his diagnosis should be deemed severe enough to warrant a compensable rating, not that it has grown in severity since 2010. If the Veteran's hearing becomes worse, he is encouraged to file a claim for increase. Accordingly, there is no indication of any additional relevant evidence that has not been obtained. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2013). ORDER Entitlement to a compensable disability rating for a service-connected bilateral hearing loss disability is denied. Entitlement to service connection for a sleep disorder, to include sleep apnea, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs