Citation Nr: 1761098 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 17-34 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1989 to June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2015, August 2016, and May 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the RO, and a transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. It is at least as likely as not that the Veteran's sleep apnea is related to service. 2. The Veteran does not have current right ear hearing loss for VA purposes. 3. The Veteran's left ear hearing loss was not caused by or related to active military service. 4. The Veteran's tinnitus was not caused by or related to active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.317 (2017). 2. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.309, 3.385 (2017). 3. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.309, 3.385 (2017). 4. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran is claiming entitlement to service connection for sleep apnea, which he asserts is related to his service-connected PTSD, bilateral hearing loss, and tinnitus. Specifically, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including sensorineural hearing loss and tinnitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Service connection may only be granted for a current disability, and therefore, when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Sleep Apnea In this case, the Board determines that service connection should be granted. Specifically, the evidence of record includes June 2017, August 2017, and September 2017 opinions from a private physician, who opined that the Veteran's sleep apnea was related to his active duty service. These opinions were based on medical research which demonstrates that sleep apnea is highly correlated with the PTSD symptomatology experienced by the Veteran. Moreover, he also opined that the Veteran's sleep apnea was related to his PTSD because his obesity (which is a major risk factor/cause of sleep apnea) was caused by his PTSD medication. As such, based on the Veteran's symptomatology, the physician opined that his sleep apnea was related to his PTSD. Additionally, the May 2017 VA examiner indicated that his sleep apnea was mostly likely caused by obesity. These opinions are provided in conjunction with credible statements made by the Veteran, indicating that the Veteran first had symptoms of sleep apnea shortly after service. While the evidence includes a negative opinion by a VA examiner in May 2017, this opinion is not sufficient enough to rebut the private physician's opinions as it failed to adequately address whether or not the Veteran's obesity was caused or aggravated by his PTSD medications, and did not address the private examiner's opinions and research related to the nexus between his sleep apnea and PTSD. Therefore, the weight of the evidence supports service connection, or is at the very least the evidence is in equipoise. As such, service connection for sleep apnea should be granted. Bilateral Hearing Loss and Tinnitus In cases where a hearing loss disability is claimed, impaired hearing will be considered to be 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 thresholds for at least three of the above frequencies 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 (2017). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. In this case, the Board determines that service connection is not warranted for bilateral hearing loss or tinnitus. As a preliminary matter, none of the audiological evaluations that the Veteran has undergone in-service or thereafter, which includes audiological examinations in February 1989 (entrance examination), September 1989 (in-service examination), June 1991 (separation examination), January 2015 (VA examination), and August 2016 (VA examination), indicate tonal thresholds sufficient to support "hearing loss" in the right ear under 38 C.F.R. § 3.385. In fact, the tonal thresholds in his right ear did not exceed 25 dB, except at 30 dB at the 4000 Hz level. Moreover, his speech recognition scores have consistently been rated at 96 percent. Additionally, although the Veteran has complained of right ear hearing loss, the Board emphasizes that such symptoms, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). As such, service connection for right ear hearing loss is not for application. See 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Next, although the Veteran was exposed to significant noise in service, the service treatment records do not indicate complaints or treatment for left ear hearing loss or tinnitus, nor were they clinically indicated. Specifically, the Veteran's June 1991 separation examination and report of medical history do not reveal any left ear hearing loss for VA purposes. Moreover, the Veteran specifically denied any hearing loss. Further, the post-service medical evidence includes statements to the Veteran's medical providers that he had hearing loss and tinnitus since service. However, the objective medical evidence does not demonstrate any symptoms, manifestations, or a diagnosis related to hearing loss until approximately 2010, when he reported decreased hearing. Moreover, the medical evidence first reports complaints related to tinnitus in 2015. Therefore, continuity of symptoms is not shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). As part of this claim, the Board recognizes the statements from the Veteran regarding his history of hearing loss and tinnitus since service. In this regard, while the Veteran is not competent to make a diagnosis related to these disorders, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for the asserted conditions weighs against the Veteran's claims. Further, the Veteran's treatment records contradict his assertions that his symptoms have persisted since service. Specifically, the Veteran's history of hearing loss and tinnitus are inconsistent with his June 1991 separation examination and report of medical history, July 1991 VA examination, and June 2014 treatment records. Lastly, the Board notes that the Veteran filed a claim for VA benefits over 10 years prior to filing the claim on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorder he now claims, weighs heavily against his credibility. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary. Here, the Board places significant value on the opinions of the VA examiners who evaluated the Veteran's hearing loss and tinnitus in January 2015 and August 2016. These examiners performed a detailed review of the Veteran's service and medical treatment records and a thorough physical examination. Specifically, the examiners opined that the Veteran's left ear hearing loss was not related to service because the Veteran's hearing was normal at separation and he did not have any complaints until many years later. Moreover, given that the Veteran did not have a significant shift in hearing during service, his current hearing loss is less likely than not related to any in-service noise exposure. With respect to tinnitus, in a January 2015 VA examination, the examiner reported that the Veteran did not have any complaints of tinnitus. Further, the August 2016 examiner opined that while the Veteran now had tinnitus, it is less likely than not that his tinnitus is related to service as the Veteran did not have tinnitus and/or symptoms thereof until after January 2015. In arriving at this conclusion, the Board acknowledges the May 2017 opinions from the Veteran's private audiologist that indicates his hearing loss and tinnitus are related to service. Nevertheless, the Board finds these opinions to be less probative as the audiologist stated that her opinions are based "solely on the information provided and observed on my visit with the patient," and were not based upon a review of the Veteran's complete service and medical treatment records. Moreover, the opinions are not sufficient to establish causation and are instead speculative as the audiologist stated "it is possible" that the Veteran's hearing loss and tinnitus "could have been connected" to service." Additionally, the Board has considered the statements made by the Veteran relating his hearing loss and tinnitus to active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the diagnosis and etiology of hearing loss. See Jandreau, 492 F.3d at 1377, n.4. While tinnitus is a disorder that is diagnosed by unique and readily identifiable features, hearing loss is not as it does not involve a simple identification that a layperson is competent to make. Instead, the diagnosis of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his disabilities are related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. Moreover, while the Veteran is competent to discuss tinnitus, as it is a disorder that may be identified purely by his symptoms, the Board finds that his assertions related to his tinnitus are insufficient to be relied upon without corroborating evidence. Specifically, as previously discussed, the Board notes that the Veteran was aware of the VA benefits system shortly after service as he was in receipt of VA compensation benefits. As such, had he experienced tinnitus at that time, it is reasonable to conclude that he would have raised the issue in a separate claim for benefits at that time. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the service connection claims for hearing loss and tinnitus, and there is no doubt to be otherwise resolved. As such, the appeal is denied. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Here, the Board finds that all necessary assistance has been provided to the Veteran. Specifically, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with VA examinations. Upon review of the examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for sleep apnea, to include as secondary to service-connected PTSD, is granted. Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs