Citation Nr: 1335205 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-45 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a sleep disorder, to include shift work sleep disorder and sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968, to April 1992. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. In February 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing at the RO. A transcript of the hearing is currently of record. In December 2012, the Board remanded the appeal for further development, at which time the Veteran's hearing loss claim encompassed both ears. In a May 2013 rating decision, the RO granted service connection for left ear hearing loss. The Board has recharacterized the Veteran's sleep apnea claim more generally as one for a sleep disorder, to include shift work sleep disorder and sleep apnea, as the medical evidence shows both diagnoses. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). As a final preliminary matter, the Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, right ear hearing loss was incurred during active service. 2. Affording the Veteran the benefit of the doubt, a sleep disorder, diagnosed as shift work sleep disorder, is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385 (2012). 2. The criteria for service connection for a sleep disorder, diagnosed as shift work sleep disorder, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, such as organic disease of the nervous system, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for organic disease of the nervous system even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA's Veterans Benefits Administration Adjudication Manual states that "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. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A veteran is not precluded from obtaining service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service if medical evidence shows that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155 (1993). A. Right Ear Hearing Loss The Veteran contends his right ear hearing loss is due to in-service noise exposure, primarily from serving as a broadcaster for the Armed Forces Radio and Television Service. Given the Veteran's military occupation, the Board concedes his in-service noise exposure, as such is consistent with the circumstances, conditions, or hardships of his service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389 (1996). Here, service treatment records show that the Veteran entered service with normal hearing. Specifically, audiometric testing, performed in January 1968 revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 0 Treatment notes, recorded in January and February 1988, note that the Veteran complained of blockage and decreased hearing in his right ear, and was treated for ear wax removal. Audiometric testing, performed in February 1992, in conjunction with the Veteran's retirement examination, showed that he met VA's criteria for hearing loss: HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 20 40 40 A clinical note, written in conjunction with the Veteran's February 1992 service retirement examination, indicates the following: "Ear trouble, high frequency and frequent colds, yearly audios, refer to hearing loss, since 1985, patient wears headphones while on duty." The Veteran also indicated he has experienced hearing loss since 1985 on his Report of Medical History, completed at retirement. Since service, the Veteran's right ear hearing has continued to deteriorate, as evidenced by private audiograms performed in 2003, 2004 and 2007. Accordingly, he satisfies the current disability requirement for service connection. Also of record is a letter from the Veteran's private ENT physician, stating that he underwent a sudden decrease in hearing in the right ear in November 2010. A May 2013 VA opinion, issued in connection with an April 2013 VA audiological examination, acknowledges the Veteran's in-service right ear hearing loss, but declines to find a relationship between his current right ear hearing loss and service. The examiner cited private evidence of record, which shows that the Veteran underwent a sudden decrease in hearing in the right ear in November 2010. Although the VA examiner opined negatively on the etiology of the Veteran's hearing loss, the Board finds that service connection is warranted on the basis of continuity of symptomatology. At the Veteran's hearing, he testified that he has experienced right ear hearing loss since service, and specifically asserted that such was present prior to his November 2010 sudden hearing loss in his right ear. The Board notes that the Veteran is competent to report symptoms such as diminished hearing because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The Board also finds the Veteran's statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant-namely, his service treatment records which show the onset of right ear hearing loss and the Veteran's reports of such at service separation. See Caluza v. Brown, 7 Vet. App. 498 (1995). Finally, the undersigned found the appellant's personal testimony to genuine, credible, and consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance"). Given that the evidence of record shows that the Veteran entered service with normal hearing and developed right ear hearing loss during service, which has persisted since service, the Board finds that service connection for such is warranted. B. Sleep Disorder The Veteran contends his sleep disorder is related to shift work he performed during service, in connection with his occupation as a radio broadcaster. As explained below, the Board finds that the evidence supports an award of service connection for shift work sleep disorder. Though the Veteran has specifically asserted his sleep apnea warrants service connection, the evidence does not show that such is attributable to service. Service treatment records document that the Veteran denied a history of sleep problems on his January 1968 Report of Medical History, completed at service entrance. While treatment notes during service are silent for sleep-related complaints, a clinical note, written in conjunction with the Veteran's February 1992 service retirement examination, indicates the following: "Frequent trouble sleeping since 1968, patient states he can not get more than 6 hours since entering military, feels it may be contributed to shift work." Another note, recorded in February 1992, indicates the Veteran's report of insomnia secondary to working shifts. The Veteran also indicated he has had frequent trouble sleeping since 1968 on his Report of Medical History, completed at retirement. An October 2007 letter from the Veteran's private physician indicates that the Veteran was diagnosed with sleep apnea in April 2002, and that he has shift work sleep disorder. The physician notes the Veteran's many years of working rotating shifts while in service, and states that it is more likely than not that his shift work sleep disorder is a result of those shifts. The physician also states that his sleep disorder has contributed to his "inappropriate sleepiness and fatigue along with his known OSAS (obstructive sleep apnea syndrome). A January 2008 VA respiratory examination expresses agreement with the October 2007 private physician's opinion that shift work contributed to the Veteran's shift work sleep disorder, but declines to attribute his sleep apnea to service, citing other likely etiologies for such and noting that the Veteran admitted to a history of ENT disorders which could be contributing to his sleep apnea. In the December 2012 remand, the Board found the January 2008 VA examination deficient with respect to the part of the opinion which addressed sleep apnea, finding that the opinion did not contain adequate reasoning as to why the Veteran's sleep apnea could not be related to shift work performed in military service, and that the examiner failed to discuss the interrelationship of the Veteran's shift work sleep disorder with his sleep apnea. In April 2013, the Veteran underwent another VA examination. The examiner again found a negative relationship between the Veteran's sleep apnea and service, stating that: History of sleep deprivation or disordered sleep due to shift work is not a risk factor for developing obstructive sleep apnea. A review of the recent medical literature is silent for any mechanism by which sleep deprivation or disordered sleep may cause or aggravate obstructive sleep apnea. The Veteran's obstructive sleep apnea is a stand-alone entity, neither caused by nor aggravated by disordered sleep due to shift work. The above medical opinions attribute the Veteran's shift work sleep disorder to his in-service shift work, but refrain from relating his sleep apnea to his in-service shift work, or to his shift work sleep disorder. (The Board comprehends the October 2007 opinion as stating that the Veteran's sleep disorder and sleep apnea contribute to his inappropriate sleepiness and fatigue-not that his sleep disorder contributes to his sleep apnea, a reading that has been suggested by the Veteran. See August 2008 Notice of Disagreement.) However, despite this, in construing the claim most favorably to the Veteran and categorizing his claim generally as one for a sleep disorder, the Board finds that such evidence supports an award of service connection, on the basis that his diagnosed shift work sleep disorder has been related to his in-service shift work. Additionally, the finding that the Veteran developed a sleep disorder due to his in-service shift work is supported by the Veteran's service treatment records, which were recorded contemporaneously with the timeframe in question. Such concurrent evidence weighs heavily in favor of the Veteran's claim. In sum, service treatment records document that the Veteran developed a sleep disorder during service. Such sleep disorder, currently diagnosed as shift work sleep disorder, has been attributed to his in-service shift work by private and VA doctors. Accordingly, the Board finds that service connection for shift work sleep disorder is warranted. ORDER Service connection for right ear hearing loss is granted. Service connection for a sleep disorder, diagnosed as shift work sleep disorder, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs