Citation Nr: 18148021 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 18-29 096 DATE: November 8, 2018 ORDER Service connection for tinnitus is granted. Service connection for sleep apnea is denied. An initial rating in excess of 20 percent for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that his tinnitus is related to active duty service. 2. The Veteran does not have a current diagnosis of sleep apnea. 3. The Veteran’s bilateral hearing loss has been manifested by no worse than Level III hearing impairment in his right ear and Level IX hearing impairment in his left ear. 4. The evidence does not indicate that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 3. The criteria for an initial rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 4. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1954 to May 1956. The Board acknowledges that the Veteran was not provided with a VA examination to determine whether his purported sleep apnea is related to his active duty service. However, given that the Veteran has not been diagnosed with sleep apnea and the absence of evidence of manifestations of sleep apnea in the treatment records, the Board determines that a VA examination is not warranted. 38 C.F.R. § 4.2; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection 1. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus was caused by or is related to his active duty service. Specifically, he asserts that his military occupational specialty of light weapon infantryman is consistent with acoustic trauma and that the loud noise he encountered at the rifle range while preparing for combat caused his tinnitus. Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Based upon the evidence of record, the Board determines that service connection is warranted for the Veteran’s tinnitus. In this case, the Board takes notice of the fact that the Veteran was granted service connection for bilateral hearing loss in a March 2018 rating decision and that VA has already conceded in-service noise exposure. Further, although he did not report tinnitus during his February 2018 VA examination, denied tinnitus in a July 2013 treatment record, and while tinnitus was not noted by physicians performing evaluations in May 2017 and August 2017, the Board nevertheless finds his statements regarding tinnitus to be competent and credible. The Board also recognizes that tinnitus is a common symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. See The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems; see also Fountain v. McDonald, 27 Vet. App. 258 (2015). Accordingly, the Board finds that the evidence is at least in equipoise and service connection for tinnitus is warranted. 2. Entitlement to service connection for sleep apnea The Veteran asserts that he experiences sleep apnea and that his sleep apnea was caused by or is related to his active duty service. It is well-established that service connection may only be granted for a current disability, and therefore, when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, based upon the evidence of record, the Board concludes that service connection for the Veteran’s reported sleep apnea is not warranted because the Veteran does not have a current diagnosis of sleep apnea and has not had one at any time during the pendency of the claim or in proximity with the filing of the claim. 38 U.S.C. §§ 1110 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). Specifically, the Board finds that after a thorough reading of the evidence of record, the evidence does not reflect a current diagnosis related to sleep apnea. The Board acknowledges the assertions by the Veteran that he has symptoms of sleep apnea, that he woke up with headaches while on active duty, and that he would fall asleep while in conversation with other soldiers during his active duty service. However, he is not competent to provide a diagnosis. The issue of whether he has sleep apnea is medically complex and requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against a finding that the Veteran had sleep apnea at any point during this appeal. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board finds that service connection for sleep apnea is not warranted. 3. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss The Veteran contends he is entitled to an initial rating in excess of 20 percent for his bilateral hearing loss because he cannot understand what is communicated to him, he cannot answer the phone, and he cannot have understandable communication with another person. In this case, the Veteran has been assigned an initial rating of 20 percent for his bilateral hearing loss under 38 C.F.R. § 4.85, DC 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiological testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure-tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. Additionally, the schedule takes into account the effect of the Veteran’s hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). An alternative rating method may be used when the pure-tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) is 55 decibels or more, or when the pure-tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure-tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). After a review of the evidence of record, the Board finds that an initial rating in excess of 20 percent for bilateral hearing loss is not warranted. Specifically, on the authorized audiological evaluation in February 2018, pure-tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 70 80 95 71.25 LEFT 50 75 85 85 73.75 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 50 percent in the left ear. Applying these values to Table VI, the Veteran exhibits Level III hearing loss in his right ear and Level IX hearing loss in his left ear. Application of these levels to Table VII, results in the assignment of a 20 percent rating. Therefore, the assignment of a rating in excess of 20 percent for the Veteran’s bilateral hearing loss is not warranted. Moreover, the Veteran’s treatment records do not support an initial rating in excess of 20 percent. Indeed, the Veteran’s treatment records do not contain any audiological tests reflecting more significant hearing loss or in any way controverting the results of the February 2018 audiological exam. Accordingly, the Board finds that an initial disability rating in excess of 20 percent for the Veteran’s bilateral hearing loss is not warranted. The Board has also considered the Veteran’s statements that his service-connected bilateral hearing loss is worse than the rating that he receives because he cannot understand what is communicated to him, answer the phone, have understandable communication with another person, and perform the duties of a truck drive. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of her hearing loss according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s bilateral hearing loss has been provided by the audiologist who examined him during the current appeal and rendered a pertinent opinion in conjunction with her evaluation. The medical findings (as provided in the examination report) directly address the criteria under which his bilateral hearing loss is evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his symptoms related to his bilateral hearing loss, and concludes that there are no symptoms that were not able to be addressed by the applicable DC, as it includes symptoms related to hearing loss. See DC 6100. Thus, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria is more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 4. Entitlement to TDIU The Veteran has asserted that he is unable to work due to his service-connected bilateral hearing loss. Specifically, he asserts that his service-connected hearing loss prevents him from performing the duties of a truck driver. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As a threshold matter, the Veteran does not meet the schedular criteria for any portion of the period on appeal. Specifically, when filing this appeal, the Veteran was solely service-connected for bilateral hearing loss (20 percent). Although the Board has concluded that service connection for tinnitus is warranted, a 10 percent rating is the maximum rating available for tinnitus, resulting in a combined rating of 30 percent. 38 C.F.R. §4.87, DC 6260. Where, as here, a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot make such a grant in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Board concludes that a remand for extraschedular consideration is not appropriate because, for the reasons discussed below, the Veteran’s service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(b). Here, the record is devoid of any evidence as to when the Veteran stopped working. The record also lacks any evidence related to the Veteran’s education level apart from his statement that he has a “low grade” of education. Contrary to his assertions, the evidence of record demonstrates that the Veteran’s service-connected bilateral hearing loss and tinnitus do not prevent him from securing or following a substantially gainful occupation. Specifically, the evidence shows that the Veteran is capable of managing his affairs and functioning independently. Indeed, treatment records from June 2016, March 2017, and February 2018 indicate that he operates the telephone on own initiative (looks up and dials numbers, etc.), takes care of all shopping needs independently, plans, prepares and serves adequate meals independently, maintains his house alone or with occasional assistance, does his personal laundry completely, travels independently on public transportation or drives his own car, is responsible for taking medication in correct dosages at correct times, and manages financial matters independently. Thus, the June 2016, March 2017, and February 2018 are probative of the fact that the Veteran’s service-connected bilateral hearing loss and tinnitus do not prevent him from securing or following a substantially gainful occupation and that they do not prevent him from performing the duties of a truck driver. Moreover, the February 2018 VA examination report reflects that the Veteran reported that the functional impact of his bilateral hearing loss was difficulty participating in one to one or group conversations, hearing the television, and answering the telephone. The Veteran did not report that his bilateral hearing loss prevented him from working or performing the duties of a truck driver. Further, the examiner did not opine or otherwise conclude that the Veteran’s bilateral hearing loss prevented the Veteran from securing or following a substantially gainful occupation. With respect to tinnitus, the examiner did not observe or report that tinnitus had any functional impact. Thus, the February 2018 VA examination report shows that the Veteran’s service-connected bilateral hearing loss and tinnitus do not prevent him from securing or following a substantially gainful occupation. By virtue of the foregoing, the Veteran’s TDIU claim is denied. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel