Citation Nr: 1757572 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-28 891A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for Parkinson's disease. 3. Whether the reduction in the disability rating from 40 percent to 30 percent for bilateral hearing loss was proper, to include entitlement to an increased rating. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty in the U.S. Navy from November 1951 to October 1955, and the U.S. Air Force from January 1968 to August 1968. He also had unverified periods of active duty for training and inactive duty training as a member of the service reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Boise, Idaho. The Veteran originally requested a hearing before a Veterans Law Judge; however, that request was withdrawn in a September 2017 written statement. The Board notes that service connection for Parkinson's disease and obstructive sleep apnea was previously denied within a September 2010 rating decision. The Veteran did not appeal this determination and it became final. Generally, new and material evidence is required to reopen a previously and finally denied determination. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In this case, however, additional service treatment records pertinent to these claims were received in 2014, subsequent to this rating decision. When VA has issued a decision on a claim, and subsequently receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file at the time of the prior decision, VA must reconsider the claim de novo. 38 C.F.R. § 3.156(c)(1). In such cases, there is no claim to reopen and new and material evidence is not required. Id. Thus, the Board may consider these claims on the merits. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2017). The issue of service connection for obstructive sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Parkinson's disease did not manifest during service or within a year thereafter and was not caused by any in-service disease, injury, or event during service. 2. The record demonstrates that at the time the RO reduced the 40 percent evaluation assigned to the Veteran's service-connected bilateral hearing loss, there had not been sustained material improvement in his hearing acuity. 3. For the period beginning September 24, 2015, the Veteran's bilateral hearing loss results in Level XI hearing acuity in the right ear and Level XI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for the award of service connection for Parkinson's disease disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for restoration of a 40 percent rating for bilateral hearing loss have been met for the period from June 1, 2013. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.105(e), 3.159, 3.343, 3.344, 4.1, 4.2, 4.10, 4.85, Diagnostic Code 6100 (2017). 3. The criteria for a 100 percent (total) disability rating for a bilateral hearing loss disability have been met for the period beginning September 24, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the present case, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, and any identified private treatment records have all been obtained. The Veteran was afforded VA medical examinations for the disabilities on appeal. The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disability sufficient to decide the claim. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to VA's duty to assist). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Service connection The Veteran seeks service connection for Parkinson's disease. He asserts this disorder results from a spider bite during service, and service connection is therefore warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such 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; 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. Id. Considering first the service treatment records, these records confirm that in May 1966, while on active duty for training, the Veteran sustained a spider bite to the glans of the penis. The spider was suspected to be of a venomous variety, possibly a black widow spider. Shortly thereafter, he reported "achy" type pain in the lower extremities. He was hospitalized for medication, rest, and observation. The following day, he reported muscular spasms of the spine and abdominal cramping. By the second day, however, he was without complaints and was discharged to resume full duty. Subsequent service treatment records were negative for any diagnosis of or treatment for a neurological disability. For example, a March 1977 annual physical examination determined the Veteran's neurological system was within normal limits, without noted abnormalities. Thus, service treatment records indicate that while the Veteran sought treatment for a spider bite during active duty service, reporting muscle pain of the lower extremities at that time, he denied chronic symptomatology thereafter, including on periodic physical examinations. VA treatment records indicate onset of Parkinson's disease in approximately 2005, many years after service. The Veteran has reported onset of tremors as early as 1991, however. Assuming the truth of such assertions, that would still indicate onset of neurological symptomatology more than 10 years after service separation. Based on these facts, the Board must conclude that this in-service neurological injury following the spider bite was acute and transitory, without chronic residuals. While a current diagnosis of Parkinson's disease has been established, this disorder was first diagnosed many years after the most recent period of active duty service. This lengthy period without complaint or treatment is evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Most recently, the Veteran was afforded a VA examination and opinion in September 2015. The claims file was reviewed in conjunction with the examination. After examining the Veteran, the examiner confirmed a diagnosis of Parkinson's disease. Regarding the etiology of this disability, the examiner opined that it was less likely than not that there was a causal nexus between the current Parkinson's disease and any in-service disease or injury. In rendering an opinion, the examiner noted the length of time between the initial reported spider bite and the current diagnosis of Parkinson's disease. The examiner opined that a black widow spider bite would result in symptoms which lasted, at most, a month or so. The examiner could find no evidence in the medical literature of onset of neurological symptoms many years after infection by a neurotoxin. The Veteran has also submitted medical treatise articles printed from the internet regarding neurotoxin exposure and various disabilities. The Court has held that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise 'is too general and inconclusive'." Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). Medical treatise evidence may indicate enough of a basis of a generic relationship to establish "a plausible causality based on objective facts." Mattern, 12 Vet. App. at 228 (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). In the present case, the articles provided by the Veteran are not specific to the facts of his claim and therefore are granted minimal probative weight by the Board. The Veteran has himself asserted that his Parkinson's disease is the result of a spider bite during service. The Board finds that the Veteran is competent to report such observable symptoms as a joint pain, but is not competent to provide a nexus with an in-service disease or injury, as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The diagnosis and etiology of a neurological disability is based on medical evaluation and clinical testing by a competent expert, as any such disability is established by objective clinical findings. Some medical issues require specialized knowledge and training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Likewise, the Veteran's lay contentions have not later been substantiated by a competent expert. Finally, the Veteran has not stated he is reporting competent evidence of a nexus as told to him by medical experts. Therefore, in consideration of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and service connection for Parkinson's disease is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Disability rating increase and reduction The Veteran appeals the reduction in his disability rating for bilateral hearing loss. In a March 2013 rating decision, this disability was assigned a reduced rating, from 40 percent to 30 percent, effective June 1, 2013. The initial rating for hearing loss had been granted effective October 14, 2010. He asserts that not only that a reduction is not warranted, but that this disability has increased in severity, and an increased rating is in fact warranted. In a rating reduction, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1994); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of a veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment. Id. The examination reports on which the reduction are based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown, 5 Vet. App. at 417-18. In this case, the 40 percent rating for bilateral hearing loss was in effect for less than five years at the time of the March 2013 reduction. The initial grant of a 40 percent rating was effective October 14, 2010. Accordingly, the provisions of 38 C.F.R. § 3.344(a) do not apply to this rating. Under the provisions of 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, a reexamination that shows improvement in a disability warrants a reduction in disability benefits. Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c). At the time of the reduction, the Veteran was rated under Diagnostic Code 6100, for hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from Level I for essentially normal acuity to Level XI for profound deafness. Tables VI and VII as set forth in 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. "[T]he assignment of 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). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b) (2013). Table VIA, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold," may be used to determine a Roman numeral designation in exceptional circumstances, such as when puretone thresholds at each of the four specified frequencies are 55dBs or more. 38 C.F.R. § 4.86. Use of Table VIA when puretone thresholds at each of the four specified frequencies are 55dBs or more is only required if it results in a higher evaluation; otherwise, Table VI may still be used. Id. In determining whether the reduction was warranted, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had actually improved. Cf. Dofflemyer, 2 Vet. App. at 281-282. However, such after-the-fact evidence may not be used to justify an improper reduction. Here, the Veteran contends that the reduction of the disability rating for hearing loss was improper, and that the 40 percent rating should be restored. The RO based its reduction on a January 2013 audiological examination. The results of this examination, in puretone thresholds, in decibels, are as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 70 80 90 71 LEFT 40 75 80 85 70 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 74 percent in the left ear. Given these findings, the mechanical application of the above results warranted a numeric designation of Level VI in each ear under Table VI. Under Table VII (38 C.F.R. § 4.85), the designation of VI in each ear requires the assignment of a 30 percent evaluation under Diagnostic Code 6100 for this period, as was assigned by the RO effective June 1, 2013. The Veteran asserts that this examination is not representative of his bilateral hearing loss, and the results are inconsistent with other examinations of record. A July 2014 private audiogram showed thresholds that appeared worse in most thresholds, although the 3000 hertz frequency was not tested, and noted Maryland CNC speech discrimination scores of 52 percent in the right and 68 percent in the left ear. He was next afforded a VA audiological examination in September 2015. The results of this examination, in puretone thresholds, in decibels, are as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 80 100 105 86 LEFT 60 90 110 105 91 Speech audiometry revealed speech recognition ability of 32 percent in the right ear and of 32 percent in the left ear. Evidence dated prior to the June 2013 reduction also suggests the Veteran's hearing loss was more severe than as was reflected by the January 2013 examination. In August 2012, the Veteran was afforded a hearing aid adjustment and periodic audiological evaluation. While the full results of this evaluation are not within the clinical record before the Board, his speech recognition thresholds were found to be 50 percent in the right ear and 55 percent in the left ear. His hearing acuity was characterized as moderate to severe hearing loss bilaterally. Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran's disability rating should not have been reduced, as the evidence did not reflect a sustained, actual change in disability or establish improvement. The Board also emphasizes that the spirit and principle behind 38 C.F.R. § 3.344 is to ensure there is actual improvement in a disability before reduction. Indeed, in this case, it is clear that there was no actual improvement in the Veteran's hearing loss disability as the VA examination reports and treatment records dated both before and after the January 2013 examination do not show improvement in the Veteran's hearing acuity, especially the speech recognition scores. Therefore, the Board finds that restoration of the 40 percent rating for his service-connected bilateral hearing loss, effective June 1,2013, is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Regarding the assertion that an increased rating is warranted, mechanical application of the September 2015 examination results warranted a numeric designation of Level XI in each ear under Table VI. Under Table VII (38 C.F.R. § 4.85), the designation of XI in each ear requires the assignment of a 100 percent evaluation under Diagnostic Code 6100. As such, a 100 percent rating is granted. Because this award represents the maximum available rating, an extraschedular evaluation need not be considered. ORDER Service connection for Parkinson's disease is denied. Restoration of a 40 percent rating effective June 1, 2013, for service-connected bilateral hearing loss is granted. For the period beginning September 24, 2015, a 100 percent disability rating is awarded for the service-connected bilateral hearing loss. REMAND Service connection - Obstructive sleep apnea The Veteran seeks service connection for obstructive sleep apnea. His initial claim asserted that his obstructive sleep apnea was the result of a spider bite in service. More recently, however, his representative has asserted that a service-connected spinal disability prevented him from engaging in physical activity, resulting in obesity and subsequent obstructive sleep apnea. The Board notes that the Veteran has been granted service connection for degenerative disc disease and spondylolisthesis of the lumbosacral spine. Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Review of the record does not indicate that the RO has considered this alternate theory of entitlement, to include obtaining any necessary development. VA medical records confirm that the Veteran's obesity is a possible causal factor in his obstructive sleep apnea. The Board finds this evidence sufficient to trigger VA's obligation to afford the claimant a VA medical examination or opinion. 38 U.S.C.A. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain a medical opinion from an appropriate VA medical expert. The claims file must be provided to and reviewed by the reviewer. The Veteran need not be scheduled for a medical examination unless the reviewer determines such an examination is required to comply with this remand. The reviewer must address the following questions: (a) Is it at least as likely as not the Veteran's degenerative disc disease and spondylolisthesis of the lumbosacral spine caused his obesity and subsequent obstructive sleep apnea? (b) Is it at least as likely as not the Veteran's degenerative disc disease and spondylolisthesis of the lumbosacral spine aggravated the Veteran's obesity and subsequent obstructive sleep apnea? (In this context, "aggravation" is defined as a permanent increase in disability beyond the natural progress of the disorder.) All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs