Citation Nr: 1806001 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-35 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable evaluation for right ear hearing loss, to include on an extraschedular basis. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for sleep apnea, to include as secondary to service-connected status post skull fracture. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Journet Shaw, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from June 1993 to April 2002 and in the U.S. Air Force from February 9, 2013 to February 13, 2013 with additional periods of service in the U.S. Air Force Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, granted service connection for right ear hearing loss and assigned a noncompensable evaluation, effective August 19, 2008; denied service connection for left ear hearing loss; and denied service connection for sleep apnea. The Veteran appealed for a higher initial evaluation for right ear hearing loss and service connection for left ear hearing loss and sleep apnea. The Veteran testified before the undersigned Veterans Law Judge at a September 2017 videoconference hearing. A transcript of this hearing is of record. In September 2017, the Veteran submitted additional evidence in support of his appeal along with a signed waiver of Agency of Original Jurisdiction (AOJ) consideration of evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2017). The issue of entitlement to an initial compensable evaluation for right ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed left ear hearing loss is etiologically related to his in-service military noise exposure. 2. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed central sleep apnea was caused by his service-connected status post skull fracture. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria to establish entitlement to service connection for sleep apnea, to include as secondary to service-connected status post skull fracture, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Given the Board's favorable decision in granting service connection for left ear hearing loss and sleep apnea, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as other organic disease of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include sensorineural hearing loss. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). With respect to hearing loss, impaired hearing will be considered to be a disability under the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Hensley at 159. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted and § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley, 5 Vet. App. at 159. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Hensley, 5 Vet. App. at 159-60. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). Thus, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Notwithstanding the provisions relating to presumptive service, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Left Ear Hearing Loss The Veteran contends that his current left ear hearing loss was caused by his exposure to loud noise during active duty service, while working as an aircraft mechanic, from aircraft, power tools, auxiliary power units, ground power units, and an aircraft carrier. Based on a careful review of all of the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in the favor of the Veteran, his service connection claim for left ear hearing loss is warranted. According to the Veteran's DD Form 214, his military occupational specialty was Systems Organizational Maintenance Technician and Airlift/Special Mission Aircraft Maintenance Craftsman. Service treatment records (STRs) reflect that the Veteran was under a hearing conservation program and was routinely exposed to noise. Based on the circumstances of the Veteran's service, the evidence demonstrates that he was exposed to noise during his active duty service. STRs document that the Veteran entered into active duty service with normal left ear hearing. See September 1992 enlistment examination. Subsequent audiological testing, performed as part of the hearing conservation program, continued to show normal hearing in his left ear for VA purposes. See June 1993, September 1994, November 1995, August 1996, March 1997, April 1998, October 1999, October 2000, and June 2001 audiograms. At his December 2001 separation examination, the Veteran had normal left ear hearing for VA purposes. The examiner noted that the Veteran had passed his December 2001 audiogram with no significant threshold shift. The evidence clearly demonstrates that the Veteran has a current diagnosis for left ear hearing loss that comports with VA's definition under 38 C.F.R. § 3.385. See May 2017 audiogram. The question remains whether the Veteran's currently diagnosed left ear hearing loss is etiologically related to his military service. The Board recognizes that there are conflicting medical opinions as to the etiology of the Veteran's left ear hearing loss. With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In this case, the Board finds that a September 2012 VA opinion is inadequate. The September 2012 VA examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by or a result of his military service. In making that determination, the VA examiner found that the Veteran's hearing loss had preexisted service and was not aggravated by service. Noting that the Veteran had normal hearing bilaterally at 5000 to 4000 Hertz (Hz) with a high frequency hearing loss in the right ear at 6000 Hz, there was no finding made with regards to the Veteran's left ear. Service connection for his right ear hearing loss had already been established. As the September 2012 VA examiner failed to provide an underlying rationale for his conclusion concerning the Veteran's left ear hearing loss, the Board finds that this opinion is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 304. Therefore, the September 2012 VA opinion has less probative value. By contrast, at a November 2008 VA examination, the VA examiner opined that "based on the Veteran's military occupational specialty and reported military noise exposure it is the opinion of this examiner that it is at least as likely as not that the veteran's hearing loss...had its origin during his military service." The Board finds that the November 2008 VA opinion was based on an objective evaluation, including puretone threshold testing, an interview of the Veteran, and a review of his claims file, and is supported by a complete rationale. Overall, the Board finds that the November 2008 VA opinion is the most probative evidence as to the etiology of the Veteran's left ear hearing loss. Notably, at the time of the November 2008 VA examination, the Veteran's left ear hearing loss did not comport with VA's definition as to a disability under 38 C.F.R. § 3.385. However, as indicated above, the Veteran currently has subsequently been found to have such a disability. Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran's current left ear hearing loss is etiologically related to his in-service military noise exposure. Therefore, resolving all reasonable doubt in favor of the Veteran, his service connection claim for left ear hearing loss is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Sleep Apnea At his September 2017 Board hearing, the Veteran testified that after his severe head injury during service, which occurred in 2001, he began to have sleep problems. He believed his symptoms began in 2002 while he was still in-service. It started when he noticed that he was tired during the day even though he had gotten enough sleep the night before. He said that prior to his head injury, he had never snored, unless he had been out late at night drinking. Now, the Veteran said that his snoring was so loud that his daughter, who when she was really young, liked to sleep with him and her mother, had stopped sleeping with him. He said he would wake up in the morning and find that his wife or partner had slept in another room, because his snoring was too loud. He was also told that he would stop breathing. The Veteran asserts that his sleep apnea developed as a result of his in-service head injury. STRs, during his first period of active duty service, do not document any findings related to any complaints, treatment or diagnosis for sleep apnea. Records show that in June 2001, the Veteran had a motor vehicle accident (MVA), where he lost consciousness and sustained a traumatic subarachnoid hemorrhage with closed head injury. Following his 2001 MVA, the Veteran complained of fatigue after difficulty falling asleep. He was diagnosed with insomnia secondary to pain and induced by anxiety. Post-service private treatment records reflect that in October 2007, the Veteran underwent a sleep study. He was diagnosed with severe obstructive sleep apnea. Subsequent VA treatment records from 2008 to 2016 reflect his continued treatment for obstructive sleep apnea with a continuous positive airway pressure machine. In February 2008, the Veteran underwent an MRI of the brain, which revealed an abnormal signal within the inferior aspect of the left frontal lobe. The private radiologist, Dr. C.B., found that it likely represented a previous contusion. A June 2008 Informal Line of Duty Determination found that the Veteran had an injury, other and unspecified resulting from his June 2001 MVA that occurred in the line of duty. The Veteran reported "feeling different" since the MVA and had trouble with snoring. In September 2012, the Veteran was afforded a VA examination to determine the etiology of his sleep apnea. Noting the results of the 2008 sleep study, and following an objective evaluation, the VA examiner reiterated the Veteran's prior diagnosis for obstructive sleep apnea. The September 2012 VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by his active duty service. That determination was based on the findings that obstructive sleep apnea occurs due to passive collapse of the oro and/or nasopharynx during inspiration while asleep and that it is caused by anatomical abnormalities as well as neuromuscular disorders. The September 2012 VA examiner concluded that the Veteran's head injury did not result in any of the abnormalities associated with sleep apnea including any neuromuscular disorder and there was no injury to the oral or nasal pharynx. In November 2012, the Veteran provided an October 2012 private opinion from his private treating neurologist, Dr. R.N., who noted that the Veteran had sleep apnea which had caused him cognitive deficiencies, insomnia, fatigue and depression. Referring to the Veteran's prior traumatic brain injury and his sleep study, Dr. R.N. explained that he had review his previous testing and MRIs. Based on that review and his current assessment, Dr. R.N. stated that it was his medical opinion that these symptoms correlated with his sustained brain injury and that he had developed central sleep apnea. Dr. R.N. explained that "[u]nlike obstructive sleep apnea, his condition demonstrates irregular respiratory patterns with periods of absences, such as Cheyne-Stokes, this is likely due to the damaged neurons from his injury." Based on a careful review of all of the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in favor of the Veteran, his service connection claim for sleep apnea, to include as secondary to service-connected status post skull fracture, is warranted. There is no dispute that the Veteran has a current diagnosis for sleep apnea and that he sustained a head injury during service, for which he is service-connected (status post skull fracture). The Board recognizes that the record includes two competing medical opinions as to the Veteran's specific sleep apnea diagnosis, and as a result, the etiology of his sleep apnea. As stated above, the Board is responsible for weighing conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection, taking into account the underlying bases for that opinion, and determining which one has more probative value. See Wood v. Derwinski, supra; Owens v. Brown, supra; Nieves-Rodriguez v. Peake, supra. In this case, the Board finds that the October 2012 private opinion was based on the expertise of a board certified neurologist, who examined the Veteran, reviewed his medical records, and provided a complete rationale for his opinion. By contrast, the September 2012 VA opinion was provided by a family physician. Therefore, the Board defers to the expert opinion of the private neurologist, and finds the October 2012 private opinion to be more probative. Taking into account the totality of the evidence, including the Veteran's credible lay statements regarding the onset of his sleep apnea symptoms after his 2001 MVA, the Board finds that the evidence is at least in equipoise that the Veteran's sleep apnea was caused by his service-connected status post skull fracture. Therefore, resolving all reasonable doubt in favor of the Veteran, his service connection claim for sleep apnea is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for sleep apnea, to include as secondary to service-connected status post skull fracture, is granted. REMAND Unfortunately, a remand is required in this case for the issue remaining on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. The Veteran's last VA examination for his service-connected right ear hearing loss was in September 2012, more than five years ago. At his September 2017 Board hearing, the Veteran testified that his hearing had worsened, as reflected by the results of recent private audiological tests in 2016 and 2017. The Veteran also indicated that he was now seeking extraschedular consideration for his service-connected right ear hearing loss. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a) (2017). As the evidence suggests that the Veteran's right ear hearing loss may have worsened since his last VA examination, a remand is required to determine the current severity of his service-connected disability. Moreover, the Board notes that the 2016 and 2017 private audiological tests do not include speech discrimination scores. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. See 38 C.F.R. § 4.85 (2017). As speech discrimination testing using the Maryland CNC word list was not performed, the Board finds that these test results are inadequate for rating purposes. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Accordingly, the case is REMANDED for the following actions: 1. Obtain all of the Veteran's outstanding treatment records for his right ear hearing loss that are not currently of record. 2. After completing the above, to the extent possible, schedule the Veteran for a VA audiological examination to determine the current severity of his service-connected right ear hearing loss by an appropriately qualified examiner. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner should provide current findings regarding all symptoms associated with the service-connected right ear hearing loss and should opine as to its severity. The examiner must describe the functional effects of the Veteran's right ear hearing loss, including on his occupational and daily activities. All findings should be fully documented in the examination report. 3. Refer the case to the Director of Compensation Service for consideration of entitlement to an extraschedular evaluation for right ear hearing loss pursuant to 38 C.F.R. § 3.321(b)(1) (2017). Associate any decision or memorandum issued by the Director with the claims file. 4. After ensuring compliance with the above, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs