Citation Nr: 1734945 Decision Date: 08/24/17 Archive Date: 09/06/17 DOCKET NO. 13-29 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran requested a videoconference hearing before the Board when he submitted his substantive appeal (VA Form 9) in October 2013. In correspondence dated in September 2016, the Veteran was notified that he was scheduled for a videoconference hearing before the Board at the RO in October 2016. The Veteran failed to report for the hearing. As such, his request for a hearing is considered withdrawn. FINDINGS OF FACT 1. Symptoms of hearing loss were not chronic in service or continuous since service; hearing loss did not manifest to a compensable degree within one year of service separation; and the Veteran's currently diagnosed bilateral hearing loss is not causally or etiologically related to his active service, to include any noise exposure therein. 2. The Veteran's currently diagnosed sleep apnea is not causally or etiologically related to his active service or secondary to a service-connected disability. CONCLUSIONS OF LAW 1. Criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2016). 2. Criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). In this case, required notice was provided. Additionally, neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disabilities and contentions, and grounded their opinions in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for certain chronic diseases, including sensorineural hearing loss, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309; see Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that tinnitus is chronic disease under 38 U.S.C.A. § 1101 (West 2014); 38 C.F.R. § 3.309(a) (2016). When chronic diseases are at issue, the second and third elements for service connection may alternatively be established by showing continuity of symptomatology. See Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Bilateral Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). Historically, the Veteran submitted a claim of entitlement to service connection for bilateral hearing loss in December 2010. The claim was denied in a March 2012 rating decision. The Veteran appealed the denial of his claim and this appeal ensued. A review of the Veteran's service treatment reports reflects that that the Veteran denied hearing loss and ear trouble on a report of medical history form prepared in conjunction with his March 1967 entrance examination. At the Veteran's entrance examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 The Veteran denied hearing loss and ear trouble on a report of medical history form prepared in conjunction with his December 1969 separation examination. At the Veteran's separation examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 - 5 LEFT 0 5 0 - 0 At a February 2011 VA audiological examination, the Veteran reported hearing loss since 1969 while pinned down in a bunker in Vietnam. He stated he was exposed to constant firing of machine guns and other loud noises for ten hours straight. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 35 70 LEFT 20 20 25 75 80 Speech recognition scores were 96 percent in the right ear and 94 percent in the left ear. The Veteran assessed the Veteran with bilateral sensorineural hearing loss. The examiner noted that the claims file was not available for review and an etiological opinion was not proffered at that time. In a January 2012 addendum opinion, the VA audiological examiner reviewed the claims file and opined that it is less likely than not that the Veteran's hearing loss is due to military acoustic trauma. The examiner's rationale was that the Veteran's hearing was within normal limits at this entrance to and separation from service with no significant change of hearing in either ear. Moreover, while the Veteran reported hearing loss due to being pinned down in a bunker during service, his hearing was within normal limits at his separation from service Post-service VA treatment reports reflect trouble hearing out of the left ear in February 2012. The examiner assessed the Veteran with impacted cerumen bilaterally and prescribed drops. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. As an initial matter, there is no medical evidence showing that hearing loss was diagnosed for VA purposes either during service or within a year of service. Likewise, bilateral hearing loss has not been continuous since service, as it was not shown by audiometric testing at separation physical To the extent the Veteran would be competent to report diminished hearing acuity at separation, he would not be competent to diagnose hearing loss for VA purposes as such a determination would require both objective audiometric and speech recognition testing, which the Veteran could not perform on himself. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the 38 C.F.R. § 3.303(b) presumptions have not been met. Nevertheless, service connection may be granted if the evidence establishes a nexus between bilateral hearing loss and the Veteran's military noise exposure. The February 2011 VA examiner concluded that the Veteran's bilateral hearing loss was less likely than not due to military noise exposure. The examiner provided a rationale for this conclusion. There is no objective evidence to contradict this opinion. Furthermore, there is no evidence of the Veteran having met the criteria for a compensable rating for hearing loss within one year after service. 38 C.F.R. §§ 3.307, 3.309. The Board acknowledges that the Veteran is competent to report that he experienced decreased hearing since service. Lay evidence in the form of statements or testimony of the Veteran is competent to establish evidence of symptomatology where symptoms are capable of lay observation, such as reporting diminished hearing acuity. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran's opinion that his claimed hearing loss disability is related to active duty service is insufficient to provide the requisite etiology of the claimed disability because that matter requires medical expertise. A lay person is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms. 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board ultimately places more probative weight on the opinion of the competent health care specialist who reviewed the record, and found that a relationship between the Veteran's current bilateral hearing loss and service was less likely. Therefore, the statements regarding his claimed hearing loss being related to active duty service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. Sleep Apnea Service connection may also be granted on a secondary basis when a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. Historically, the Veteran submitted a claim of entitlement to service connection for sleep apnea in November 2011. The claim was denied in a March 2012 rating decision. The Veteran appealed the denial of his claim and this appeal ensued. A review of the Veteran's service treatment reports does not reflect any complaints, findings, or treatment for sleep apnea. At a February 2012 VA sleep apnea examination, the examiner noted that a sleep study performed at VA in February 2012 revealed a diagnosis of sleep apnea. Following a review of the claims file, interview of the Veteran, and physical examination of the Veteran, the examiner opined that the Veteran's sleep disorder is less likely than not caused by or occurred secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD). The examiner's rationale is that PTSD is not a known risk factor for the development of sleep apnea or other sleep disordered breathing. The Veteran was referred by VA for a polysomnography study at NovaSom in September 2012. The Veteran was assessed with moderate sleep apnea. Records from VA dated after the September 2012 sleep study reflect that the Veteran was treated for his sleep apnea with a CPAP (continuous positive airway pressure) machine. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for sleep apnea. The Veteran contends that his sleep apnea is secondary to his service-connected PTSD. However, no medical opinion or other medical evidence relating the Veteran's sleep apnea to service or a service-connected disability has been presented. Moreover, the only medical opinion of record indicates that the Veteran's sleep apnea is not secondary to the service-connected PTSD. The examiner provided a clear rationale to support his findings that was grounded in medical literature. There is no medical opinion of record to contradict the VA examiner's opinion. Although the Veteran contends that he has sleep apnea which is secondary to his service-connected PTSD, he has submitted no competent medical evidence or opinion to corroborate that contention. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinion is insufficient to provide the requisite etiology of the claimed sleep apnea because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (2016); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for sleep apnea is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs