Citation Nr: 18142952 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 08-33 657 DATE: October 18, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss has been manifested by no worse than level I hearing acuity in the right ear and level I hearing acuity in the left ear.  CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. 3.102, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to February 1970. In April 2017, the Board remanded this matter for further evidentiary development. Pursuant to the April 2017 remand, an August 2017 rating decision continued a noncompensable disability rating for the now service-connected bilateral hearing loss. Increased Ratings Disability ratings are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations 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 consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. 4.3. In cases where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. 4.2. In such cases, staged ratings are appropriate when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings for each such distinct time period. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). BILATERAL HEARING LOSS Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. 4.85, Tables VI and VII, Diagnostic Code 6100 (2017). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. 4.86 (a) (2017). Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be considered separately. 38 C.F.R. 4.86 (b). The Veteran underwent VA examination in November 2010. Puretone thresholds values revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 30 40 LEFT 20 25 55 70 75 Average puretone thresholds were 25 in the right ear and 56.25 in the left ear. Speech discrimination scores were 100 percent bilaterally. Applying the results from that examination to Table VI in 38 C.F.R. 4.85 yields a finding of Level I hearing loss in the right ear and Level I in the left ear. Where hearing loss is at Level I in one ear and Level I in the other, a noncompensable percent rating is assigned under Table VII. The November 2010 audiogram results do not establish the requisite criteria for application of Table VIA. See 38 C.F.R. 4.85, 4.86. The Board notes that neither the Veteran, nor his representative, has objected to the adequacy of the examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). Although the Veteran disagrees with the assigned rating, he has not asserted a worsening of his symptoms since the last VA examination in November 2010. As such, the examination of record is considered adequate for rating the Veteran’s bilateral hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995).   Accordingly, the evidence is not sufficient to demonstrate that the Veteran’s bilateral hearing loss meets the criteria for a compensable rating during the period on appeal. 38 C.F.R. 4.85. As the preponderance of the evidence is against the claim for a compensable rating percent for bilateral hearing loss; there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C. 5107 (b); 38 C.F.R. 3.102, 4.3. REASONS FOR REMAND 1. OBSTRUCTIVE SLEEP APNEA is remanded. Pursuant to the April 2017 remand, the RO was to obtain an addendum opinion regarding whether the Veteran’s obstructive sleep apnea was aggravated by his service-connected diabetes mellitus. In the April 2017 remand, the Board also noted that in October 2011, the Veteran submitted reports of two medical studies which investigated whether there was a relationship between sleep apnea and diabetes. He also submitted a document from the International Diabetes Foundation (IDF) titled “The IDF Consensus Statement on Sleep Apnea and Type 2 Diabetes”. In one of the medical studies, titled “Sleep-Disordered Breathing and Type 2 Diabetes: A report from the International Diabetes Federation Taskforce on Epidemiology and Prevention”, there is a notation that “the autonomic dysfunction resulting from diabetes may increase the risk of OSA” (obstructive sleep apnea). In the August 2017 VA addendum opinion, the examiner opined that the Veteran’s obstructive sleep apnea was not at least as likely as not aggravated beyond its natural progression by his service-connected diabetes mellitus. The examiner reasoned that [evidence of] worsening of obstructive sleep apnea would require comparison of the Veteran’s sleep studies in 2009 and 2013. The examiner also stated that there is no known natural progression of obstructive sleep apnea and that it typically worsens with weight gain and improves with weight loss if the patient is obese. The examiner further stated that there is no known direct effect of diabetes mellitus type II on obstructive sleep apnea.  The Board finds the August 2017 addendum opinion to be inadequate. Initially, the Board notes that the examiner’s rationale that “[evidence of] worsening of the Veteran’s obstructive sleep apnea would require comparison of the Veteran’s sleep studies in 2009 and 2013” gives the impression that the examiner did not compare the Veteran’s two sleep studies in providing his opinion. Moreover, the examiner did not discuss the two sleep studies. Additionally, the examiner did not discuss the Veteran’s weight or allude to any other process which may have resulted in aggravation of the Veteran’s obstructive sleep apnea. Lastly, the examiner did not address the reports of two medical studies submitted by the Veteran in October 2011 in support of his claim. Thus, a new supplemental opinion must be obtained on remand. 2. CORONARY ARTERY DISEASE is remanded. Pursuant to the April 2017 Board remand, the RO was to issue a statement of the case (SOC) that addressed the matter of the effective date assigned for the award of a 60 percent disability rating for the Veteran’s coronary artery disease. The issue was specifically noted to be whether an effective date prior to February 20, 2008 was warranted for the 60 percent disability rating, which was a matter that was not addressed in the April 2017 Board decision’s analysis addressing the increased rating issue for the coronary artery disease. It appears as though such development has not yet been completed. Thus, the Board must remand this issue for compliance of the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. TDIU is remanded. The matter of entitlement to a TDIU must be deferred as it is inextricably intertwined with the claims being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain an opinion from a VA examiner other than the examiner who provided the June 2013 and August 2017 VA opinions. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea is either caused or aggravated by his service-connected diabetes mellitus. The term “aggravation” means a worsening of the underlying condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran’s obstructive sleep apnea prior to aggravation by the service-connected diabetes mellitus. In providing the requested opinions, the examiner must address the two medical studies submitted by the Veteran in October 2011 suggesting a relationship between obstructive sleep apnea and diabetes mellitus. The examiner must provide a complete rationale for each opinion given. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 3. Issue an appropriate SOC addressing the claim for an effective date earlier than February 20, 2008, for the award of a 60 percent rating for coronary artery disease. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel