Citation Nr: 18146715 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-21 462 DATE: November 1, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Service connection for a depressive disorder, claimed as secondary to service-connected disabilities is granted. Service connection for obstructive sleep apnea, claimed as secondary to service-connected disabilities is granted. REMANDED Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. For VA purposes, the Veteran does not have a current bilateral hearing loss disability. 2. Resolving all doubt in the Veteran's favor, the currently diagnosed depressive disorder, is etiologically related to the service-connected disabilities. 3. Resolving all doubt in the Veteran's favor, the currently diagnosed obstructive sleep apnea, is etiologically related to the service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154(a), 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 service connection for a depressive disorder, is approximated. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 3. The criteria to establish service connection for obstructive sleep apnea, is approximated. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303 , 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1981 to February 1986. These claims come before the Board on appeal from a May 2014 rating decision of the Saint Louis, Missouri Regional Office. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Furthermore, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection 1. Entitlement to Service Connection for Bilateral Hearing Loss is Denied The Veteran asserts that he has bilateral hearing loss resulting from military noise exposure. After review of the evidence, both medical and lay, the Board finds that at no time during the appellate period has the Veteran's level of hearing loss risen to the level of a disability for VA purposes, and that service connection is not warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Sanchez-Benitez v. Principi, 259 F.3d. 1356 (2001). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. In November 2013, the Veteran filed for service connection for bilateral hearing loss. In April 2014, the Veteran underwent a VA examination to determine the etiology of any bilateral hearing loss, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 15 LEFT 10 15 10 15 15 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. The VA examiner indicated that the test results were valid for rating purposes. Post service VA and private medical records are silent for an complaints of or treatment for hearing loss. As previously stated, a necessary element for establishing entitlement to service connection is the existence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, at no time during the appellate period has the Veteran's level of hearing loss risen to the level of a disability for VA purposes. After a full review of the record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for a bilateral hearing loss disability for VA purposes for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to Service Connection for a Depressive Disorder and Obstructive Sleep Apnea. The Veteran seeks service connection for both a depressive disorder and obstructive sleep apnea, both on a secondary basis. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran is currently service-connected for: (1) status post gunshot wound to right popliteal fosse, evaluated at 40 percent; (2) right knee laxity, evaluated at 30 percent; (3) three right lower extremity deep scars, evaluated at 30 percent; (4) residuals, multiple scars, right and left lower extremitas, evaluated at 30 percent; (5) donor site scar, bilateral lower extremities, evaluated at 20 percent; (6) left lower leg scar, evaluated at 20 percent; and (7) a right lower extremity scar, evaluated at 0 percent. As an initial matter, the Board finds that the Veteran has currently diagnosed depressive disorder and obstructive sleep apnea disabilities. Specifically, the Veteran submitted Disability Benefit Questionnaire’s (DBQ’s) completed by private physicians that show diagnoses of both disabilities. Here, the Veteran did not undergo VA examinations for either claimed condition. However, VA treatment show mental health treatment for depression and reports of sleep problems with a diagnosis of obstructive sleep apnea. In January 2015, the Veteran underwent a private mental health evaluation. The private examiner diagnosed the Veteran with depressive disorder, due to another medical condition with mixed feature (depressive disorder). The private examiner then opined that the Veteran’s depressive disorder was more likely than not aggravated by his service-connected disabilities. The rationale provided was that the Veteran struggles with his permanent and debilitating service-connected injuries. The private examiner further indicated a review of the claims file and an interview with the Veteran. Next, in November 2016, the Veteran underwent a private examination and was diagnosed with obstructive sleep apnea. Based on medical literature, an interview with the Veteran, and review of the claims file, the private examiner opined that the Veteran’s obstructive sleep apnea was permanently aggravated by the service-connected disabilities, to include the depressive disorder granted above. The rationale provided was that research showed psychiatric disorders and opiate medications that the Veteran is prescribed for his service-connected disabilities are recognized as contributing to obstructive sleep apnea. The Board finds the January 2015 and November 2016 private medical opinions, thorough and adequate because they provide a sound basis upon which to base the decisions on the issues adjudicated here. The opinions consider the pertinent evidence of record, to include the Veteran's medical history, and provided rationales for the opinions stated. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claims. Specifically, the Board could seek further examinations to clarify and definitively opine on the etiology of the current depressive disorder and obstructive sleep apnea in relation to the service-connected disabilities. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The Board therefore finds that the evidence is at least in equipoise on the question of whether the depressive disorder and obstructive sleep apnea are related to the Veteran's service-connected disabilities. Resolving all reasonable doubt in favor of the Veteran, the criteria for a grants of service connection have been met. 38 U.S.C. § 5107(2012). REASONS FOR REMAND 1. Entitlement to Service Connection for Sinusitis is remanded. The Veteran seeks service connection for sinusitis. Service treatment records show the Veteran experienced “sinus troubles” and was treated for the possibility of having allergies. It is unclear from the record whether the Veteran has a current sinus disability. The duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of the prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). To date, the Veteran has not been provided a VA examination to determine the etiology and nature of any sinus disability, therefore, a remand is required. The matter is REMANDED for the following action: 1. Associate any VA treatment records since August 2008 with the electronic claims file. 2. Thereafter, schedule the Veteran for a VA examination to address the etiology of the claimed sinus disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should provide the following opinion: Is at least as likely as not (a 50 percent probability or greater) that any sinus disability originated during the Veteran's active period of service or, is otherwise etiologically related to his active service? The examiner must comment on the Veteran’s in-service reports of sinus problems. (Continued on the next page)   The examiner must provide the rationale for all opinions expressed. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel