Citation Nr: 1623879	
Decision Date: 06/15/16    Archive Date: 06/29/16

DOCKET NO.  10-09 214	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1. Entitlement to service connection for a bilateral hearing loss disability.

2. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, to include as secondary to the Veteran's service-connected disabilities of the cervical and thoracolumbar spine.

3. Entitlement to an increased initial evaluation for kyphosis and degenerative disc disease of the thoracolumbar spine, currently rated as 10 percent disabling prior to November 30, 2011 and 20 percent disabling from November 30, 2011.

4. Entitlement to an increased initial evaluation for degenerative spondylosis of the cervical spine, currently rated as noncompensable prior to November 30, 2011 and as 20 percent disabling from November 30, 2011.


REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Nye, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 2005 to May 2006 and from August 2006 to June 2008.

This case comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Jurisdiction was later transferred to the RO in Milwaukee, Wisconsin.

In its decision, the RO decided eleven issues.  Among its other rulings, the RO denied service connection for a claimed sleep disorder and a claimed bilateral hearing loss disability.  The RO granted service connection for disabilities of the thoraolumbar and cervical spine, assigning an initial 10 percent disability rating for the thoracolumbar spine and a zero percent (noncompensable) rating for the cervical spine.  After the Veteran initiated his appeal, the RO issued a new rating decision, dated February 2013, increasing the rating assigned to both spinal disabilities to 20 percent, effective November 30, 2011.  

On March 21, 2016, the Veteran testified by videoconference before the undersigned Veterans Law Judge.  A transcript of that hearing is of record. 

The issues of entitlement to service connection for a sleep disorder, entitlement to an increased initial evaluation for kyphosis and degenerative disc disease of the thoracolumbar spine and entitlement to an increased initial evaluation for degenerative spondylosis of the cervical spine are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The Veteran does not have a bilateral hearing loss disability as defined in the applicable VA regulation.


CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).

Duty to Notify

The notice VCAA requires depends on the general type of claim the Veteran has made.  "As a result, generic notice provided in response to a request for service connection must differ from that provided in response to a request for an increased rating."  Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of disability.  Id. at 486.

The claimant in this case has substantiated his status as a veteran.  In a letter dated July 2008, the AOJ notified him of all the other elements necessary to establish his claim for service connection for a bilateral hearing loss disability, including the disability rating and effective date elements.

Duty to Assist

VA has similarly fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim.  Service treatment records, post-service medical records, and lay statements have been associated with the claims file.  

The AOJ arranged for examinations to assess the nature and etiology of the claimed hearing loss disability in October 2008 and again in August 2015.  The Board has carefully reviewed both VA audiology examination reports and finds that, together with the other evidence, they are adequate for rating purposes.  

The Veteran was appeared at a hearing before the undersigned in March 2016.  It was noted at that time that the claim for service connection for a hearing loss disability was current on appeal.  However, the Veteran chose not to present testimony on this issue, and his representative essentially asked that the claim be decided on the record.  Accordingly, the Board will proceed with a decision on this issue.

As the Veteran has not identified additional evidence pertinent to the claim and as there are no additional records to obtain, no further assistance to the Veteran is required to comply with VA's duty to assist.

Service Connection for Hearing Loss

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Although sensorineural hearing loss is a chronic disease for which service connection is presumed if it manifests within a year of service, 38 U.S.C.A. § 1112(a), 38 C.F.R. § 3.309(a), whether service connection is claimed on direct, presumptive, or any other basis, it is essential to establish the existence of a current disability.  See Degmetich v. Brown, 104 F.3d 1328, 1329 (1997). 

Impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of those frequencies are 26 decibels or greater; or when the Veteran's speech recognition scores on the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385.

According to the results of the October 2008 VA audiological examination, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
20
15
10
LEFT
0
10
15
15
15

His Maryland CNC speech recognition scores were 98 percent in the right ear and 100 percent in the left ear.

In her written report, the examining audiologist acknowledged the Veteran's credible statements describing his exposure to loud noises in service.  She wrote that it was at least as likely as not that the Veteran's tinnitus was related to service.  She could not reach a similar conclusion about hearing loss because the test results indicated normal hearing in both ears.

According to the August 2015 VA audiological examination report, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
20
15
20
LEFT
10
10
15
25
35

His Maryland CNC speech recognition scores were 100 percent in both ears. 

In support of his hearing loss claim, the Veteran submitted a letter and copies of hearing test results recorded during his active duty service.  They are dated August 2005 and October 2007.  The August 2005 results at the relevant frequencies are recorded below:
  



HERTZ


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

The October 2007 results at the relevant frequencies are recorded below:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
10
15
5
5
LEFT
5
10
10
10
0

The October 2007 results indicate an auditory threshold of 45 decibels in the Veteran's left ear at 6000 Hertz.  The August 2005 results indicate a threshold of 50 decibels 50 decibels at 6000 Hertz.  

According to 38 C.F.R. § 3.385, the Veteran has a hearing loss disability only if at least one of the following applies: 1) the auditory threshold is 40 or greater in one of the frequencies between 500 and 4000, inclusive; or 2) the threshold is 26 or more in three of those frequencies; or 3) the score of Veteran's the Maryland CNC speech recognition test is "less than 94 percent."  While the thresholds recorded at 6000 Hertz exceed 40 dB, the thresholds did not exceed 40 dB at any of the frequencies contained in 38 C.F.R. § 3.385, i.e., 500, 1000, 2000, 3000 or 4000 Hertz.

The examination results described above are the only evidence available on the issue of whether the Veteran met the regulation's threshold for hearing loss disability at any time after he filed his claim in June 2008.  The Board has considered the hearing transcript; however, despite given the opportunity to present testimony on the issue, the Veteran declined to do so.  Thus, there is no evidence of a hearing loss disability in either ear during the pendency of the claim, and, therefore, the current disability element has not been met.  See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007).  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.


REMAND

The Veteran's increased rating claims for his service-connected disabilities of the cervical and thoracolumbar spine must be remanded to resolve an apparent inconsistency concerning his diagnosis, which could affect the disability rating assigned.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015), an intervertebral disc syndrome may be rated under either the General Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  Under the Formula for Rating Intervertebral Disc Syndrome, incapacitating episodes having a total duration of least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a 30 percent rating.

In November 2011, a VA physician assistant examined the Veteran and wrote a report indicating the presence of intervertebral disc syndrome (IVDS) in both the cervical and thoracolumbar spine.  According to her report, intervertebral disc syndrome caused incapacitating episodes of at least 2 weeks but less than 4 weeks within the past year.  

A VA physician examined the Veteran's spine in August 2015.  He wrote separate reports for both spinal segments, both of which quote extensively from the November 2011 examination report and from radiology reports describing prior imaging studies of the Veteran's spine.

On the examination report form, next to pre-printed text asking the examiner to indicate whether the Veteran had IVDS, the August 2015 examiner wrote that the Veteran did not have IVDS.  He made the same note - i.e., that the Veteran did not have IVDS - for both the cervical and thoracolumbar spine.  These notes are confusing, especially with respect to the cervical spine, because both reports quote the November 2011 examiner's contrary finding without explanation, i.e., the examiner did not explain whether the Veteran's condition had resolved or whether the examiner believed the November 2011 VA examiner was mistaken in diagnosing IVDS.  Moreover, in section 1 ("diagnosis") of the August 2015 cervical spine examination report, "DDD/IVDS" is identified as a past or present condition of the Veteran's cervical spine.  A new medical opinion is needed to clarify these findings.

In his January 2016 hearing testimony, the Veteran said that he experienced "radiation of pain" from his back into one of his legs.  The August 2015 VA examination reports both indicate that the Veteran had no radicular pain and no other signs and symptoms due to radiculopathy.  

When rating diseases of the spine, note (1) to 38 C.F.R. § 4.71a requires VA to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code.  In context, the Veteran's hearing testimony amounts to a statement that the severity of his lower back disability has worsened since the most recent examination.  When a Veteran claims that a service-connected disability is worse than when originally rated VA must provide a new examination.  See Olson v. Principi, 3 Vet. App. 480, 482 (1992).

The Veteran has also applied for service connection for a sleep disorder.  In a general medical examination, dated October 2008, a VA physician assistant noted "sleep disorder" as one of the Veteran's diagnoses.  The Veteran's written statements indicate that he has a sleep disorder associated with his service-connected chronic back pain.

After a sleep study in December 2011, he was diagnosed with obstructive sleep apnea.  The AOJ obtained a medical opinion on the Veteran's sleep apnea in April 2012, and the examiner wrote that, in her opinion, it was less likely than not that the Veteran's sleep apnea was related to his active duty service.  Sleep apnea, the examiner explained, is associated with obesity and "from the time of service through March 2011 the Veteran had a 50+ lb weight gain."  The AOJ also asked the following question of the physician who examined the Veteran's back in August 2015: "Does the Veteran have a diagnosis of (a) sleep apnea that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) sleep disturbance during service?"  

The August 2015 examiner opined that it was less likely than not that sleep apnea began during active duty service because "[obstructive sleep apnea] was diagnosed following active service and . . . is not caused by sleep disturbance . . ."  The examiner then adopted by reference the April 2012 medical opinion.  The examiner also opined that it was unlikely that the Veteran's sleep apnea was aggravated beyond its natural progression by the Veteran's spine disabilities because: "[degenerative disc disease] is not the cause of [obstructive sleep apnea] and because there are no records to support this contention and to the exclusion of other factors."

Based on these opinions, the AOJ denied service connection for a sleep disorder.  However, the opinions obtained are incomplete and, therefore, inadequate.  Both the April 2012 and August 2015 VA examiners restricted their opinions to the likely causes of sleep apnea only.  None of them indicated whether another sleep disorder, particularly the sleep disorder identified in the October 2008 general medical examination, began in service or was the result of, or aggravated by, a service-connected disability.  

It is also possible that the opinions on sleep apnea were based on an inaccurate factual premise.  In June 2008, shortly before his discharge from service, the Veteran weighed 257.5 pounds.  At the time of the December 2011 sleep study, which resulted in his current diagnosis, he weighed 273 pounds.  In other words, it appears that the Veteran only gained approximately 15 pounds between his discharge from the military and his sleep apnea diagnosis - not "50+ [pounds]" as reported by the April 2012 VA examiner.  Since the April 2012 examiner's opinion, which was also endorsed by the August 2015 examiner, attributed the Veteran's sleep apnea to obesity, this misunderstanding could potentially undermine the rationale for the examiner's opinion.  For this reason, the Board will also remand the Veteran's sleep disorder claim for a new medical opinion.

The Board also notes that during his hearing, the Veteran noted that he was scheduled for a bone scan several days after the hearing.  On remand, the AOJ should ensure that appropriate efforts are made to obtain all outstanding pertinent medical records.

Accordingly, the case is REMANDED for the following action:

1. Obtain all outstanding, pertinent VA and private treatment records related to the Veteran's service-connected disabilities of the cervical and thoracolumbar spine and also pertinent records related to his claimed sleep disorder, to include the scheduled bone scan noted by the Veteran during his March 2016 hearing.  All records received should be associated with the claims file.  If the AOJ cannot locate all Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  The claimant must then be given an opportunity to respond.

2. Schedule new examinations with an appropriate medical professional to assess the nature and current severity of the Veteran's service-connected disabilities of the cervical and thoracolumbar spine.  The examiner should be provided with copies of the Veteran's entire VA claims file, including electronic and any paper records.  The examiner should note in the examination report that the claims folder and this remand have been reviewed.  All necessary tests should be conducted.

The examiner should describe the functional limitations caused by service-connected kyphosis and degenerative disc disease of the thoracolumbar spine and degenerative spondylosis of the cervical spine since the inception of the appeal in June 2008.  The examiner should indicate whether intervertebral disc syndrome (IVDS) is associated with either disability.  If IVDS is associated with either disability, the examiner should indicate the length of any resulting incapacitating episodes.  If the examiner does not believe that the Veteran has IVDS, he or she should specifically address the November 2011 VA examination report, which indicates IVDS associated with both the cervical and thoracolumbar spine.  If he or she believes that the Veteran does not now have IVDS, the examiner should explain whether he or she believes the November 2011 was mistaken or whether the Veteran's condition has improved or resolved since November 2011.  The examiner should also indicate whether either disability is associated with radiating pain or any associated objective neurological abnormalities, including the "radiation of pain" described by the Veteran in his January 2016 hearing testimony.  

3. Obtain an addendum opinion from the August 2015 VA examiner on the nature and etiology of the Veteran's claimed sleep disorder.  If for any reason the examiner is not available, the requested opinion should be obtained from another qualified person.  If it is necessary, another examination should be arranged.  The examiner should be provided with copies of the Veteran's entire VA claims file, including electronic and any paper records.  The examiner should note in the examination report that the claims folder and the remand have been reviewed.  All necessary tests should be conducted.

After reviewing the claims file and any personal examination, if necessary, the VA examiner should identify all current sleep disorders.  The examiner should then provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that any diagnosed sleep disorder began during the Veteran's active duty service, is the result of any disease, injury or event in service, or is the result of any other service-connected disability, including the Veteran's service-connected disabilities of the cervical and thoracolumbar spine.  If the examiner identifies obstructive sleep apnea as the Veteran's only diagnosed sleep disorder, he or she should address the October 2008 general medical examination, which identifies a "sleep disorder" in the "diagnosis" section of the report.  

The examiner's report should discuss the April 2012 VA examination report which attributes the Veteran's sleep apnea to obesity.  The examiner should acknowledge, however, that the Veteran's weight was 257.5 pounds shortly before his discharge from the Army and 273 pounds at the time of the December 2011 sleep study, which resulted in his current sleep apnea diagnosis and that, therefore, the Veteran gained approximately 15 pounds between service and the time of his sleep apnea diagnosis, not "50+" as the April 2012 report erroneously suggested.

If the examiner determines that any of the requested opinions cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training.

A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate.

4. After completing any additional development deemed necessary, readjudicate the claims.  If any benefit requested on appeal is not granted to the appellant's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs