Citation Nr: 1800102	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  14-08 084	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to service connection for obstructive sleep apnea (OAS) to include as secondary to service-connected post-traumatic stress disorder (PTSD).

2. Entitlement to service connection for right ear hearing loss. 

3. Entitlement to an initial compensable rating for left ear hearing loss. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse. 


ATTORNEY FOR THE BOARD

B. Lewis, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from March 1972 to June 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2012 and October 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  The May 2012 rating decision denied service connection for right ear hearing loss and granted service connection for left ear hearing loss, evaluated as noncompensable, with an effective dated of December 13, 2011.  The October 2012 rating decision denied service connection for obstructive sleep apnea.

The Veteran filed a Notice of Disagreement (NOD) in July 2012 for his hearing loss claims and in September 2013 for his sleep apnea claim.  The RO issued a Statement of the Case (SOC) in January 2014, and the Veteran submitted a VA Form 9 in February 2014.  Thus, the Veteran perfected a timely appeal of these issues.  The RO issued a Supplemental Statement of the Case (SSOC) for the Veteran's sleep apnea claim in July 2016.

In November 2016, the Veteran was afforded a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ).  A copy of the hearing transcript has been associated with the claims file.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file.

The issues of entitlement to service connection for right ear hearing loss and entitlement to a compensable rating for left ear hearing loss 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's current obstructive sleep apnea is not shown to have manifested during active service, developed as a result of an established event, injury, or disease during active service, or to be due to or aggravated by the service-connected post-traumatic stress disorder. 


CONCLUSION OF LAW

The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

As set forth in 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. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012).

Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seek to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

VA's duty to notify was satisfied by letters sent in January 2012 and September 2012.  See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA has a duty to provide assistance to substantiate a claim. This duty includes assisting in the procurement of service treatment records and pertinent post-service treatment records, as well as providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c).  In this regard, the Veteran's service treatment records as well as post-service VA and private treatment records and reports have been obtained.  The Board notes that at the November 2016 hearing, the Veteran's representative indicated that the Veteran intended to submit a private nexus opinion from Dr. L.B.  To date, no such opinion has been received.  The aforementioned opinion notwithstanding, the Veteran has not identified any additional existing evidence that is not of record that is necessary for a fair adjudication of his appeal.  

Additionally, during the pendency of this appeal, the Veteran was provided VA medical examinations, including opinions. The Board finds that these VA examination reports are adequate to decide the claim because they are based upon consideration of the relevant facts particular to this Veteran's medical history, describe the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008).  Thus, the Board finds that VA's duty to assist has been met.

II. Service Connection

Applicable Laws and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Service connection may also be established for a disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury; or, any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease.  38 C.F.R. § 3.310(a)-(b).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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).

Obstructive Sleep Apnea

The Veteran has a current diagnosis of obstructive sleep apnea.  The Veteran is also service connected for post-traumatic stress disorder, evaluated as 70 percent disabling from December 13, 2011, and evaluated as 100 percent disabling from March 21, 2014.  It is the Veteran's contention that his sleep apnea is secondary to his service-connected PTSD.  At his November 2016 Board hearing, the Veteran indicated that he had been diagnosed with sleep apnea approximately five years prior, although he did not recall the exact date of diagnosis.  The Veteran's wife testified that the Veteran rarely sleeps and often tosses and turns during the night.  She further testified that he stops breathing frequently while sleeping and experiences frequent nightmares.  The Veteran indicated that he uses a CPAP machine but that he did not feel that the device was helping his condition and that he sometimes pulls the mask off in his sleep because he feels suffocated by it.  See November 2016 Board Hearing Transcript.

The Veteran was afforded a VA examination for his sleep apnea in October 2012.  The examiner indicated that the Veteran did not then, nor had he ever had, a diagnosis of sleep apnea.  The examiner indicated that a sleep study had been conducted in August 2012 but that results had not yet been interpreted.  The examiner opined that it was less likely than not (less than 50 percent or greater probability) that the Veteran's sleep apnea was proximately due to or the result of the Veteran's service connected condition.  As rationale, the examiner explained that obstructive sleep apnea could not be diagnosed at the time.  He stated that it was a well-established fact that a significant number of patients who present with classic symptoms of obstructive sleep apnea will ultimately be found to not have the condition when tested with a formal sleep study.  The examiner expounded on that information before further stating that the major hallmark symptom of obstructive sleep apnea was daytime somnolence and that at the time of the examination there did not appear to be clear documentation of chronic hypersomnolence present while the Veteran was in service.  He stated that the Veteran had a history of depression and PTSD and that his major difficulty with sleep was the initiation and maintaining of sleep.  See October 2012 VA Examination Report.

The Veteran was subsequently provided a second VA examination in June 2016.  The examiner opined that it was less likely than not (less than 50 percent or greater probability) that the Veteran's sleep apnea was due to or the result of his service-connected PTSD.  The examiner noted that the earliest objective documentation of likely sleep apnea symptoms occurred in December 2003.  The examiner offered a detailed history of the Veteran's reports of sleep apnea symptoms, including several sleep studies which appeared to have either been cancelled or which the Veteran could not complete.  An April 2013 note indicated that the Veteran had a sleep consult and underwent home PSG in April 2013.  He was subsequently diagnosed with mild to moderate OSA, with "positional component...evident as supine sleep had a significantly increased AHI."  The Veteran was then issued an autoPAP.  Review of VA visits showed no objective evidence of psychiatric symptoms until October 2008 when the Veteran had a positive depression and audit-C screen.  The examiner further noted two documented negative depression and PTSD screens in 2005.  The Veteran first received mental health evaluation in 2009 after requesting referral for evaluation of PTSD.  The Veteran was subsequently given multiple diagnoses including, major depressive disorder, ethanol dependence, anxiety, NOS, and PTSD.  The examiner noted that the Veteran reported having PTSD symptoms continuously since service, however there was no objective documentation to support that assertion.  See June 2016 VA Examination Report.

The examiner went on to state that review of credible peer-reviewed medical literature does not show PTSD as a risk factor for the development of OSA, and does not show that OSA is a recognized sequelae of PTSD.  There is no physiologic basis for PTSD to cause obstructive sleep apnea.  The examiner explained that the Veteran has several well established risk factors for OSA, including: male gender, increasing age, obesity, smoking, and COPD.  The examiner opined that since objective evidence suggested that the Veteran's sleep symptoms preceded a diagnosis of PTSD, medical references do not suggest a link between OSA and PTSD, and the Veteran's subjective reports have been inconsistent over time, it was his opinion that it was less likely than not that the Veteran's sleep apnea was due to or the result of his service connected PTSD.  Id. 

Regarding the question of aggravation, the examiner stated that based upon his review of the records, there was no objective evidence that the Veteran's sleep apnea had been permanently aggravated or worsened due to his service-connected PTSD. The Veteran's OSA was officially diagnosed in April 2013. He was issued a CPAP in June 2013. The examiner noted that the Veteran was involved in a physical assault in July 2013 which resulted in orbital floor fracture and had led to multiple surgeries. The examiner indicated that this was the Veteran's second traumatic brain injury and noted that it was unclear to him whether prior examiners were aware of this history. The Veteran's complaints of worsened nightmares in 2013 corresponded temporally with the assault. The Veteran's primary care physician seemed to associate the severe nightmares with the assault. The examiner stated that it was of note that since the 2013 facial injury involving the eye, the Veteran had not been able to wear his CPAP and therefore was not getting treatment for OSA. More recent notes documented that the Veteran's nightmares had lessened and he was sleeping better. Given that he had reported improved sleep, the examiner opined that there was no objective evidence to support aggravation of OSA by PTSD. Id.

After careful review of the evidentiary record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea.

As stated above, current VA treatment and examination records confirm that the Veteran has a sleep apnea diagnosis. See, e.g., June 2016 VA Examination. The Veteran claims that his sleep apnea is secondary to PTSD, a disorder for which service connection is currently in effect. Thus, the remaining question for consideration here is whether the Veteran's sleep apnea is proximately caused or aggravated by his service-connected PTSD.

In this case, the competent and probative medical opinions of record are against the Veteran's claim for service connection on a secondary basis.  In this regard, an October 2012 VA examiner found that obstructive sleep apnea could not be diagnosed at the time.  The Board does not afford great probative value to October 2012 VA opinion, as it appeared to have been rendered without the benefit of results from an August 2012 sleep study.  However, thereafter, the June 2016 VA examiner opined that current medical literature did not show any relationship between PTSD specifically causing obstructive sleep apnea, stating that there was no physiologic basis for PTSD to cause obstructive sleep apnea.  The examiner stated that the Veteran had several well established risk factors for OSA, including male gender, increasing age, obesity, smoking, and COPD. 

The June 2016 VA opinion is considered highly probative as to the issue of causation/aggravation because it is unequivocal, based upon a complete review of the Veteran's claims file, and supported by rationale.  See Nieves-Rodriguez, supra.  The June 2016 opinion, in particular, attributed the Veteran's sleep apnea to other causes - namely, male gender, increasing age, obesity, smoking and COPD.  The examiner further offered his opinion that the Veteran's sleep apnea predates his formal diagnosis of PTSD and further associated specific periods of sleep disturbances with an assault suffered by the Veteran in July 2013, noting that the Veteran later reported improved sleep.  Accordingly, this opinion is found to carry significant probative value.  The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight.  See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). 

In so finding, the Board acknowledges that the Veteran's attorney submitted an internet article in support of the claim.  The article, derived from the Sleep Apnea Treatment Centers of America, entitled, "Post-Traumatic Stress Disorder and Sleep Apnea" generally addresses the occurrence of sleep apnea in people who suffer from PTSD.  The article states generally that people with PTSD can be more susceptible to anxiety disorders and that some research studies suggest a relationship between a number of anxiety disorders and sleep apnea. 

Medical treatise evidence can, in some circumstances, constitute competent medical evidence.  However, while the article submitted by the Veteran addresses PTSD and sleep disorders/OSA, it does not contain any information or analysis specific to the Veteran's case.  In contrast, the medical opinions provided by the VA examiners were specific to the Veteran and attributed his sleep apnea to his established risk factors.  As such, the Board finds that the information reflected in the submitted article is not probative of the specific medical questions at issue in this appeal, and is outweighed by the professional opinions of the VA examiners.  See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). 

The Board has also considered the statements of the Veteran and his wife asserting a nexus between his service-connected PTSD and sleep apnea.  However, the Board finds that the etiology of sleep apnea and its relationship to PTSD, falls outside the realm of common knowledge of a layperson, and thus, neither the Veteran nor his wife are competent to provide evidence on the issue of causation.  See Jandreau, supra; see also Kahana v. Shinseki, 24 Vet. App. 428 (2011).  As such, the lay statements of the Veteran and his wife regarding etiology are afforded little probative weight. 

Accordingly, for the reasons outlined immediately above, the Veteran's claim of entitlement to service connection for sleep apnea on a secondary basis must be denied. 

Neither the Veteran nor his attorney have asserted that the Veteran's sleep apnea is causally or etiologically related to service.  Moreover, the record is silent regarding any indication that the Veteran's sleep apnea is directly related to service. Service treatment records are silent as to complaints, treatment, or diagnoses related to sleep apnea.  The first evidence of symptoms of sleep apnea in the medical record, appear in December 2003 and the Veteran was not diagnosed until approximately April 2013, over twenty years after separation from active duty service.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints).  The record does not otherwise include any lay or medical evidence that indicates onset of sleep apnea during service or that the currently diagnosed sleep apnea is causally or etiologically related to service.  Accordingly, the preponderance of the evidence is also against the claim for service connection for sleep apnea on a direct basis. 

In short, the most competent and probative evidence of record indicates that the Veteran's sleep apnea is neither related to service, nor to his service-connected PTSD.  For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for sleep apnea, and the claim must be denied.  The benefit-of-the-doubt doctrine is, therefore, not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for obstructive sleep apnea is denied.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).

The Veteran seeks entitlement to service connection for right ear hearing loss and entitlement to an initial compensable rating for left ear hearing loss. VA has previously determined that the Veteran was exposed to loud noise in military service.

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, or 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 160  (1993).

The Veteran was afforded a VA audiological examination in February 2012.  The audiological evaluation showed the left ear with 94 percent speech discrimination, the right ear with 96 percent speech discrimination, and revealed pure tone thresholds, in decibels, as follows:


HERTZ

500
1000
2000
3000
4000
LEFT
-
30
25
20
40
RIGHT
25
20
20
15
30

An examination was also conducted in October 2012 but was limited to the Veteran's tinnitus and contained no data associated with the Veteran's hearing loss.  The Veteran was denied service connection for right ear hearing loss because his right ear did not show a hearing loss for VA purposes. 

At his November 2016 hearing, the Veteran indicated that he now used a hearing aid in his non-service connected right ear and that his overall hearing had worsened.  The Veteran testified that he had a more recent hearing examination.  An April 2015 audiology note shows that the Veteran was seen for a follow-up evaluation and indicated that he reported the loss of his left ear hearing aid.  It was noted that the last hearing evaluation was in February 2012.  The note indicated right ear mild to severe S-NHL above 3000 Hz  an left ear mild S-NHL at 1000 Hz and moderate to severe S-NHL above 3000 Hz.  Word recognition was noted as excellent bilaterally.  The examiner noted that hearing had worsened bilaterally, greater right, from the last evaluation.  An entry in the note states "see audiogram display under tools menu for complete audiometric results."  See April 2015 Audiology Note. 

The Board notes that the complete audiometric results from this April 2015 audiology examination do not appear in the documents attached to the April 2015 audiological note and do not appear to be of record.  Thus, the only audiometric data of record comes from the Veteran's February 2012 VA examination, some five years ago.  When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination when there is evidence of a change in the disability since the last examination.  Snuffer v. Gober, 10 Vet App 400 (1997).  Given the potential of worsening, and because there is insufficient evidence upon which the Board can assess the current severity of the Veteran's lumbar spine disability, the Board finds that a new examination, with findings responsive to applicable rating criteria, is needed to fully and fairly evaluate the Veteran's claims for an initial compensable rating.  Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous").  Updated treatment records, including any results from an April 2015 audiological examination, should also be associated with the claims file.

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records documenting treatment for his bilateral hearing loss conditions. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records.

2. Ensure that a copy of any audiometric testing of the Veteran's hearing acuity, to include the audiometric data referenced in the April 2015 audiology note, is obtained and download into the Veteran's claims file.

3. Schedule the Veteran for a VA audiological examination to determine the current level of severity of his service-connected left ear hearing loss and to determine the nature and etiology of his claimed right ear hearing loss. The Veteran's electronic medical records and a copy of this remand should be made available to and be reviewed by the examiner.

Any tests or studies deemed necessary should be conducted, to specifically include audiometric testing, and the results should be reported in detail. The examiner must also fully describe the functional effects caused by the Veteran's hearing disability. 

If the auditory thresholds from the current examination differ significantly from the results of other tests, the VA examiner should explain the reason why there is a difference, if possible.

With respect to the Veteran's claimed right ear hearing loss, the examiner is asked to state whether the Veteran now has hearing loss for VA purposes, and if so to offer an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's right ear hearing loss is etiologically related to his conceded in-service military noise exposure. 

4. After completing the above, the claim on appeal should be readjudicated. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

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).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs