Citation Nr: 1752777 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-02 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA). 2. Entitlement to service connection for a thyroid disorder. 3. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Robert C. Brown, Jr., Attorney ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had a period of active duty for training (ACDUTRA) from May 1995 to July 1995 and periods of active service from May 2003 to May 2003, from May 2007 to October 2007, and from October 2007 to November 2008, to include service in Southwest Asia. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2016, the Board remanded the Veteran's claims for further development. In May 2017, the RO granted service connection for a left knee disability, a right knee disability, a left ankle disability, and a right ankle disability. This represents a complete grant of his appeal in regard to these claims. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). These issues are no longer before the Board. As such, the Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). FINDINGS OF FACT 1. Competent and credible lay evidence makes it at least as likely as not (50 percent or greater) that the Veteran's OSA began in active service. 2. A thyroid disorder was not shown in active service and was not shown to have been incurred in or aggravated during active service or a period or ACDUTRA. 3. Audiological testing of the Veteran's hearing acuity when applied to either Table VIA or Table VII results in noncompensable disability rating. CONCLUSIONS OF LAW 1. OSA was incurred in active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for a thyroid disorder have not been met. 38 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.383, 3.385, 4.85-4.87, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and 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 met, and 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 the 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 (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but he withdrew his request for a hearing in April 2014. The Veteran was also provided VA examinations and neither the Veteran, nor his representative, has objected to the adequacy 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 if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection for injury or disease incurred or aggravated during a period of active duty for training (ACDUTRA) is warranted. 38 U.S.C.A. § 101(24)(B); 38 C.F.R. § 3.6(a). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). Inactive duty for training (INACDUTRA) is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). Active duty also includes authorized travel to or from such duty or service. 38 C.F.R. § 3.6(e). ACDUTRA is not defined as "active" service unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). INACDUTRA is not defined at "active" service unless the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Obstructive Sleep Apnea In October 2012, the Veteran submitted a service connection claim for his OSA, which was denied by an October 2013 rating decision. He asserts that his OSA is due to his active service. The Veteran's service treatment records (STRs) are negative for complaints, treatment, or diagnosis of OSA, or any other sleep or respiratory disorder. The Veteran was first evaluated for a sleep disorder in September 2010, and a polysomnography established OSA. He had been released from active duty in November 2008. The record includes multiple lay statements regarding the Veteran's OSA symptoms. The Veteran reported that he started having trouble sleeping during his active service in Southwest Asia. Fellow veteran R.H. reported that he was the Veteran's roommate in Southwest Asia and that the Veteran would snore and stop breathing while sleeping. The Veteran was afforded VA examinations in September 2012 and February 2017 and the examiners opined that the Veteran's OSA was not caused by his active service. The statements of the Veteran and R.H. are given great probative weight. They are competent to report symptoms of OSA, such as snoring and breathing cessation, as they are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). There is no reason to doubt their credibility. As such, when weighing the evidence of record, the Board finds that at most the evidence for and against the Veteran's claim is in relative equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran's favor. Accordingly, the Veteran's claim for service connection for OSA is granted. Thyroid Disorder In January 2013, the Veteran submitted a service connection claim for his thyroid disorder, which was denied by an October 2013 rating decision. He asserts that his thyroid disorder is due to his active service. The Veteran's service treatment records (STRs) do not show symptoms, complaints, treatment, or diagnoses for a thyroid disorder. The first evidence of a thyroid disorder is in December 2009 when the Veteran had a high TSH level, which was over a year after his separation from active service. He was diagnosed with hypothyroidism in 2010. There is no objective evidence of record that directly links the Veteran's current thyroid disorder to his active service or ACDUTRA. STRs do not show a diagnosis of a thyroid disorder rendered by a medical officer during service or ACDUTRA. As such, service connection on a direct basis is not warranted. In September 2012, the Veteran was afforded a VA examination. The Veteran reported that his thyroid problem was found in 2010. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran's thyroid disorder was less likely than not due to his active service. In February 2017, the Veteran was afforded a second VA examination. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran's thyroid disorder was less likely than not due to his active service. The examiner reported that there were no documented symptoms or findings consistent with hypothyroidism during the Veteran's active service and the first diagnosis was made more than one year after his separation from service. After weighing all the evidence, the Board finds great probative value in the VA examiners' opinions. These opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). These opinions overall provided substantial reasoning and explanation as to why the Veteran's thyroid disorder was not due to his active service. See also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Veteran has not submitted any competent evidence supporting his assertion that his thyroid disorder was due to his active service. Therefore, after weighing all the evidence, the Board finds great probative value in the VA examiners' opinions. Consideration has been given to the Veteran's assertion that his thyroid disorder was due to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, namely the etiology of the Veteran's diagnosed thyroid disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). A thyroid disorder is not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding etiology, as the evidence shows that physical examinations that include objective medical tests are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of a thyroid disorder, to the extent they are identifiable by observation (symptoms such as fatigue), he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating thyroid disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. As such, the criteria for service connection for a thyroid disorder have not been met, and the Veteran's claim is denied. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In October 2012, the Veteran submitted an increased rating claim for his bilateral hearing loss, which was denied by an October 2013 rating decision. He asserts that he is entitled to a compensable rating. The Veteran's bilateral hearing loss has been rated under Diagnostic Code 6100, for hearing loss. See 38 C.F.R. §§ 4.85, 4.86. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The Veteran underwent a VA audiological examination in March 2017. The results of audiometric testing showed a pure tone threshold average of 45 with a speech discrimination score of 100 percent in the left ear and a pure tone threshold average of 38 with a speech discrimination score of 100 percent in the right ear. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Here, the Veteran's average decibel loss and speech recognition score at the March 2017 audiological examination equate, using Table VI, to a Level I in the left ear and to a Level I in the right ear. When these results are combined on Table VII, the results from the March 2017 audiological examination result in a noncompensable rating. Additionally, Table VIA would not be applicable in either situation, because the pure tone threshold was neither 55 decibels at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), nor 70 decibels or more at 2000 Hz for either ear. Moreover, there was no indication by the VA audiologist that the speech recognition scores were not appropriate. VA treatment records have been reviewed, but do not show the results of any additional audiometric testing during the course of the appeal. As described, a compensable schedular rating is not warranted for the Veteran's bilateral hearing loss. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that he is entitled to a higher rating. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Here, the rating assigned for bilateral hearing loss is dependent on the results of audiometric testing, as such, an assertion that a higher rating is warranted, abest audiometric testing results to back such a claim, carries no weight. Accordingly, a compensable schedular rating for the Veteran's bilateral hearing loss is denied. ORDER Service connection for OSA is granted. Service connection for a thyroid disorder is denied. A compensable rating for service-connected bilateral hearing loss is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs