Citation Nr: 1806039 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-20 069A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to a compensable disability rating for left ear hearing loss. REPRESENTATION Appellant represented by: Charles D. Romo, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran had active service with the U.S. Army from February 1980 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions in March 2012 and August 2014 issued by the St. Petersburg, Florida, Regional Office (RO). In July 2017, the Veteran testified at a hearing held at the RO before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. FINDINGS OF FACT 1. Sleep apnea originated in service. 2. The Veteran's left ear hearing loss disability is manifested by hearing acuity no worse than Level II. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for a compensable disability rating for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.383, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in correspondences dated January 27, 2011, July 14, 2011, and May 14, 2014. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to VA examination of the Veteran. The Veteran has not identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Moreover, the Board's grant of service connection for sleep apnea represents a complete grant of the benefits sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary. II. Law and Analysis for Service Connection for Sleep Apnea The Veteran is seeking service connection for sleep apnea that he contends had its onset during service. 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; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). After careful consideration of the evidence, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran described the initial manifestations of sleep apnea as disrupted sleep and snoring since the 1980s. He finally underwent a sleep study in 2010 and was given a continuous positive airway pressure (CPAP) machine, which controlled the symptoms "fairly well." See clinical records from The Sleep Disorders Center at Shands Jacksonville, dated in May 2010. Lay statements, submitted by the Veteran's family members and a coworker, describe their observations of loud snoring, gasping for air, and pauses in breathing. Of particular note is a statement from the Veteran's brother who was stationed at Fort Sill, Oklahoma in the early 1980s. At that time he shared an apartment with the Veteran witnessed his sleeping habits including loud snoring and gasping for air, such that he would check on the Veteran to be sure he was okay. He later elaborated upon this history in a July 2017 Board hearing. Service treatment records do not document complaints or findings suggestive of sleep apnea prior to the Veteran's discharge from service in 1987. As noted above sleep apnea was first diagnosed in May 2010 and he was started on CPAP treatment with successful results. A VA examination has not been provided to address the Veteran's claimed sleep apnea, however such an examination is not required because the Board is persuaded by the Veteran's credible testimony on the matter. Despite the lack of a definitive medical nexus opinion in this case, medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is competent to testify as to observable symptoms such as snoring, gasping for air, and apnea. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board also finds that his brother's lay statement of the Veteran having manifestations due to the sleep apnea in service are credible and sufficient to establish the onset of symptoms to the time he was serving on active duty. There is no evidence in the record that contradicts his brother's statement or that makes it less trustworthy, so there is no reason to doubt his credibility in this regard. Therefore, while not outcome determinative, there is probative value to the both the Veteran's testimony and his brother's lay statement that the symptoms the Veteran experienced during service have continued until he sought treatment and was diagnosed with sleep apnea (assertions that they are competent to make). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 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). Accordingly, after carefully reviewing all the evidence on file, there is no adequate reason to reject the competent and credible testimony. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). Furthermore there is no competent medical opinion refuting, much less probatively outweighing, the evidence supporting this claim. Based on the totality of the evidence, the benefit of the doubt is resolved in the Veteran's favor and the Board finds that his sleep apnea was incurred during his military service. Accordingly service connection for sleep apnea is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. III. Law and Analysis for Left Ear Hearing Loss The Veteran is seeking a compensable disability rating for his service-connected left ear hearing loss. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41 (2017). The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left ear hearing loss is currently rated as noncompensably disabling under DC 6100. Hearing loss is evaluated under DC 6100, which sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched on Table VI to find the numeric designation. Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The provisions of section 4.86 address exceptional patterns of hearing loss which are identified when each of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383 of this chapter. See 38 C.F.R. § 4.85(f). Applying the regulations to the current facts, the Board finds that the criteria for a compensable rating are not met. The record includes a VA audiological evaluation in April 2011, which shows pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 25 25 35 55 65 The results of the VA audiogram show an average puretone threshold of 45 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. Exceptional patterns of hearing impairment are not indicated. The audiologist concluded that the Veteran had moderately severe sensorineural left ear hearing loss. The Veteran was employed as a manger of pest control company and as a contract truck driver with the post office. The effect of the condition on his usual occupational and daily activities included difficulty understanding quiet speech or speech in background noise, continually asking others to repeat themselves, problems with localization of sound sources due, and having to significantly increase the volume on his television. These audiometric findings reflect a numeric designation of Level I auditory acuity in the left ear. See 38 C.F.R. § 4.85, Table VI. The nonservice-connected right ear is assigned a numeric designation of I. The point of intersection on Table VII reflects a level of hearing loss consistent with a noncompensable rating. See 38 C.F.R. § 4.85. The audiological results do not satisfy the criteria for a rating greater than the currently-assigned noncompensable evaluation for left ear hearing loss due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. When examined by VA in July 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 30 25 65 65 70 The results of the VA audiogram show an average puretone threshold of 56 decibels. Speech audiometry revealed speech recognition ability was 88 percent. Exceptional patterns of hearing impairment are not indicated. The effect the condition had on the Veteran's ordinary conditions of daily life, including his ability to work, was that he had a difficult time understanding what people say, especially if they are not facing him and that he was worked that he may fail his next DOT physical due to his left ear hearing loss. These VA audiometric findings reflect a numeric designation of Level II auditory acuity. See 38 C.F.R. § 4.85, Table VI. The nonservice-connected right ear is assigned a numeric designation of I. The point of intersection on Table VII reflects a level of hearing loss consistent with a noncompensable rating. See 38 C.F.R. § 4.85. Again the audiological results do not satisfy the criteria for a rating greater than the currently-assigned noncompensable evaluation for left ear hearing loss due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. The Board points out that the provisions of 38 C.F.R. § 3.383(a)(3) are not applicable in the present case, which prevents consideration of compensation as though hearing loss in both ears was service connected. While the Veteran's right ear hearing loss meets the definition of a current disability for VA purposes according to 38 C.F.R. § 3.385, his left ear hearing loss is not shown to be so severe that it is compensable to a degree of 10 percent or more. 38 C.F.R. § 3.383(a)(3). In this case, the Veteran is not entitled to a compensable disability rating for his left ear hearing loss at any time during the appeal period, based on the audiometric data of record. In reaching this conclusion, the Board sympathizes with his complaints regarding the functional impact of his hearing loss on his daily life, and has read and carefully considered his testimony and lay statements in this regard. The Board has also not overlooked the Veteran's primary contention that his hearing loss is debilitating at a far greater percentage than 0 percent or VA's obligation to resolve all reasonable doubt in his favor. However despite the general quality of life problems the Veteran has described, his hearing loss disability is evaluated on the objective findings demonstrated during audiological examination. The fact that his left ear hearing acuity is less than optimal does not, by itself, establish entitlement to a higher disability rating. Rather, it is clear from the Rating Schedule that higher ratings can be awarded only when loss of hearing has reached a specified measurable level. That level of disability has not been demonstrated in the present case. The 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, supra. The Board has also considered that the Veteran has not been afforded VA examination of his hearing loss since 2014, but finds that the medical evidence of record in this case is not too old to adequately evaluate this disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (another VA examination is not warranted based on the mere passage of time). The Court noted that a factor to consider was whether the submission or identification of additional lay or medical evidence raised the question of whether the medical evidence of record was sufficient to render a decision on the claim. In this case, no competent medical evidence, by or on behalf of the Veteran, has been submitted which suggests that his service-connected left ear hearing loss, has become worse in the period of time since the last evaluation. Given the lack of pertinent clinical findings since the 2014 VA examination and the fact that the history provided by the Veteran during that examination, and considered by the examiner, is consistent with that reflected in the record, the examiner's report (which reflects not only the Veteran's history, but complaints, clinical findings and diagnoses) is sufficient for rating purposes. 38 C.F.R. § 4.2 (2017); Abernathy v. Principi, 3 Vet.App. 461 (1992). Consequently a new VA examination to rate the severity of his service-connected left ear hearing loss is not warranted. Accordingly, the Veteran's impairment due to his left ear hearing loss is most consistent with a noncompensable evaluation and the level of disability contemplated in DC 6100 to support the assignment of a 10 percent disability rating or higher is absent. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). ORDER Service connection for sleep apnea is granted. A compensable disability rating for left ear hearing loss is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs