Citation Nr: 18148692 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-31 994 DATE: November 8, 2018 ORDER Entitlement to service connection for sleep disorder, to include as secondary to service-connected bilateral hearing loss and/or tinnitus is denied. Entitlement to an increased evaluation in excess of 50 percent for bilateral hearing loss is denied. Entitlement to a total disability rating due to individual unemployability is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran has not been diagnosed with a sleep disorder at any time during the pendency of the appeal. 2. The Veteran’s hearing loss has been manifested by, at worst, Level X hearing loss in the right ear and Level VI hearing loss in the left ear. 3. The evidence does not persuasively show that the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sleep disorder, to include as secondary to service-connected bilateral hearing loss and/or tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2017). 2. The criteria for entitlement to an evaluation in excess of 50 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 3.321, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.85, Diagnostic Code 6100 (2017). 3. The criteria for entitlement to a total disability rating due to individual unemployability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an September 2011 rating decision granting a 50 percent evaluation for bilateral hearing loss effective January 7, 2010, a September 2012 rating decision denying service connection for sleep disorder, and a March 2013 rating decision denying entitlement to individual unemployability. The Veteran did not request a Board hearing. Applicable regulations provide that if new and material evidence was received during an appellate period following a RO decision (one year for a rating decision and 60 days for a SOC) or prior to an appellate decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b) (2017); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156 (b), “VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367 - 68 (Fed. Cir. 2011). In the present case, new and material evidence concerning the claim for service connection for sleep disorder was received within one year of the September 2012 rating decision in the form of a December 2012 VA examination. As this evidence is considered as having been filed in connection with the claim that was pending at the beginning of the appeal period, the September 2012 rating decision did not become final with respect to this issue. See 38 C.F.R. § 3.156 (b). Accordingly, the claim for entitlement to service connection for sleep disorder remains pending, and is appropriately characterized as a de novo claim for service connection. 1. Entitlement to service connection for sleep disorder, to include as secondary to service-connected bilateral hearing loss and/or tinnitus The Veteran contends that his sleep disorder is due to his bilateral hearing loss and tinnitus medication. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2017). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by his service-connected bilateral hearing loss and tinnitus. The Board concludes that the Veteran does not have a current diagnosis of sleep disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 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). The July 2012 VA examiner did not indicate a diagnosis of obstructive sleep apnea or any sleep disorder. However, the examiner did provide an opinion regarding whether the Veteran’s obstructive sleep apnea was caused by, or the result of, or aggravated by the Veteran’s bilateral hearing loss. The Board finds the July 2012 VA examination inadequate as the examiner did not provide an adequate rationale for why the objective evidence did not support the Veteran’s claim. The December 2012 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of trouble sleeping, he did not meet the diagnostic criteria under the DSM-IV for a sleep disorder. VA treatment records from November 2006 to June 2016 show the Veteran had insomnia listed as an active problem. However, while VA treatment records show the Veteran has insomnia listed as an active problem, there is no indication that any diagnostic tests confirm the presence of a sleep disorder. Instead, the statement appears to be based on the Veteran’s self-reported medical history, which is inconsistent with VA treatment records that show subjective complaints of trouble sleeping, but no clinical diagnosis of a sleep disorder. Consequently, the Board gives more probative weight to the December 2012 VA examiner’s findings. While the Veteran believes he has a current diagnosis of a sleep disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it 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). Consequently, the Board gives more probative weight to the competent medical evidence. There is also no persuasive evidence of symptoms that result in any functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). Therefore, since the Veteran does not have a current diagnosis of a sleep disorder, entitlement to service connection for sleep disorder on a direct or secondary service basis is not warranted. 2. Entitlement to an increased evaluation for bilateral hearing loss Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the “staging” of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests 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 bilateral service-connected defective hearing, the 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 Codes 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 Lendenman 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). 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 evaluated separately. 38 C.F.R. § 4.86 (b). The Veteran claims entitlement to an evaluation in excess of 50 percent for his service-connected hearing loss. For the following reasons, the Board finds that the criteria for a rating in excess of 50 percent are not satisfied. The Veteran was afforded a VA examination in January 2011. He exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 75 105+ 105+ LEFT 50 55 65 70 80 Speech audiometry revealed speech recognition ability of 40 percent in the right ear and of 72 percent in the left ear. A VA treatment audiology note shows the Veteran underwent a VA audiology examination in March 2012. Speech recognition scores, however, were not reported. Therefore, the results of the examination may not be used for evaluating purposes. See 38 C.F.R. § 4.85. The Veteran was afforded VA examination in July 2012. The examiner was not able to test at multiple frequencies because the test results were inconsistent and not indicative of an organic hearing loss. Speech audiometry revealed speech recognition ability of 12 percent in the right ear and of 40 percent in the left ear. The examiner stated the use of the speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores as well as other factors that make combined use of puretone average and speech discrimination scores inappropriate. As no puretone thresholds were tested, the results of the examination may not be used for rating purposes. See 38 C.F.R. § 4.85. The Veteran was afforded a VA examination in September 2012. The examiner could not test one or more frequencies and could not test speech discrimination. The examiner noted that despite repeated reinstruction and retesting final results are not considered to be valid for rating purposes. Responses to puretone testing were initially inconsistent and initial puretone averages were not in agreement with speech reception thresholds. The Veteran was carefully reinstructed several times and puretone thresholds did improve significantly after the final reinstruction. As no puretone thresholds and speech discrimination scores were tested, the results of the examination may not be used for rating purposes. See 38 C.F.R. § 4.85. On a private audiological evaluation in December 2012, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 85 110 110 LEFT 60 65 85 95 100 Speech audiometry revealed speech recognition ability of 32 percent in the right ear and of 60 percent in the left ear. The speech audiometry does not indicate whether the test was the Maryland CNC speech discrimination test. Therefore, the results of the examination may not be used for evaluating purposes. See 38 C.F.R. § 4.85. The Veteran was afforded a VA examination in December 2013. The examiner could not perform the puretone audiometry test and could not test speech discrimination. The examiner stated that despite repeated attempts and reinstruction, the test results were not reliable and are not suitable for rating purposes in the examiner’s opinion, and are therefore not being reported. The test results were strongly suggestive of a non-organic hearing loss/ hearing loss component. There was variability in responses to pure-tones of up to 25 dB with retest (more than could be expected from test-retest variability), SRTs were in poor agreement with PTAs (SRTs were significantly better than expected given pure-tone results), and the poor speech recognition scores obtained were inconsistent with observed communication abilities. The examiner then stated that the use of the word recognition score is not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate. As no puretone thresholds and speech discrimination scores were tested, the results of the examination may not be used for rating purposes. See 38 C.F.R. § 4.85. Upon VA examination in February 2016, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 80 95 105+ 105+ LEFT 65 85 90 105 105+ Speech recognition scores, however, were not reported. Therefore, the results of the examination may not be used for evaluating purposes. See 38 C.F.R. § 4.85. The Veteran was afforded a VA examination in September 2016. He exhibited puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 95 105+ 105+ LEFT 60 60 90 90 90 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 82 percent in the left ear. Applying the findings from the January 2011 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level X hearing loss in the right ear and Level VI hearing loss in the left ear. The Veteran demonstrated an exceptional hearing pattern in the left ear but such results only yield a lesser finding of Level V under Table VIA. Accordingly, a 50 percent rating was assigned under Table VII. 38 C.F.R. § 4.85. Applying the findings from the September 2016 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level V hearing loss in the right ear and Level V hearing loss in the left ear which warrant a 20 percent rating under Table VII. The Veteran demonstrated an exceptional hearing pattern in both ears and such results yield a greater finding of Level VIII in the right ear and Level VII in the left ear under Table VIA which result in a 40 percent rating under Table VII. 38 C.F.R. § 4.86. The Board has reviewed the probative evidence of record and finds that the Veteran’s hearing disability has not been shown to be manifested by an exceptional pattern of hearing impairment; or to otherwise meet the criteria for a compensable rating. Fenderson, supra. The Board has reviewed and considered the Veteran’s statements regarding functional loss due to hearing impairment, including difficulty understanding quiet speech and speech presented in the presence of background noise, continually asking individuals to repeat themselves, turning the TV up, and problems conversing with his co-workers. See January 2011 VA examination. He reported he feels like he hears in a tunnel all the time and reports he cannot hear anything out of his left ear. See July 2012 VA examination. While these statements do paint a picture of the difficulty caused by the hearing impairment, these statements and medical evidence do not establish that an evaluation in excess of 50 percent is warranted for any part of the appeal period because a schedular rating is determined from the application of mechanical audiometric testing and speech recognition scores. Importantly, the percentage bilaterally of speech recognition reflects high speech discrimination ability throughout the rating period on appeal. In this case, the examination records reflect no more than Level X auditory acuity for the right ear and Level VI auditory acuity for the left ear at any point after the claim for an increased rating. Such findings do not support assignment of an evaluation in excess of 50 percent. Instead, the Veteran’s audiometric findings fall squarely within the criteria for a 50 percent evaluation under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100. The functional impairment caused by the hearing loss described by the Veteran is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Veteran’s level of disability has most nearly approximated that contemplated by his current evaluation. For these reasons, an increased rating is not warranted. 3. Entitlement to a total disability due to individual unemployability The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2017). Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In circumstances where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The Veteran’s bilateral hearing loss is rated as 50 percent effective January 7, 2010, and tinnitus is rated as 10 percent effective June 27, 2005. The combined disability rating is 60 percent from January 7, 2010. As such, the Veteran meets the minimum rating requirements of 38 C.F.R. § 4.16(a) based on common etiology. Unemployability associated with advancing age or intercurrent (i.e. non-service connected) disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a schedular rating provides recognition of such. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The schedular criteria contemplate compensating a Veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. 38 C.F.R. § 4.1. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. The Veteran reports that his bilateral hearing loss and tinnitus render him unable to work. See May 2013 Veteran’s Application for Increased Compensation based on Unemployability. There is no persuasive credible evidence that the Veteran was unemployable due to his service-connected disabilities. The Veteran’s work history shows he worked as an iron worker, carpenter, pipe fitter, and millwright from 1973 to 2008. See January 2012 Social Security Administration records. The Veteran’s resume states he has over thirty years’ experience as a skilled maintenance millwright and carpenter. He completed 2 years of college and has obtained a degree in Applied Science in Mechanical Technology. See May 1982 Erie Community College certificate. He participated in the Vocational Rehabilitation and Employment program of VA. See June 2012 VA records. The Veteran also obtained certifications in first aid, CPR, AED, a FEMA course, a security officer course, certified officer training course, hazardous waste and emergency response course, hazardous material technician course, and general outreach training course. The July 2012 and September 2016 VA hearing loss and tinnitus examinations found the Veteran’s hearing loss impacted his ability to work. The Veteran reported his hearing has declined, he feels as if he is hearing in a tunnel all the time, and cannot hear out of his left ear. The evidence of record shows that the Veteran has been gainfully employed through 2008. Since then, the Veteran has obtained several certifications and trainings, as well as participated in VA’s Vocational Rehabilitation and Employment program. Although the VA examiners found the Veteran’s hearing loss impacts his ability to work, it was not shown that the Veteran is unable to find gainful employment. As noted above, the sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining employability, the Veteran’s level of education, special training, and previous work experience is for consideration. The Board is not persuaded that given the Veteran’s level of education, special training, and previous work experience, his disabilities render him unemployable. The Veteran’s statement that his bilateral hearing loss and tinnitus render him unable to work is not persuasive evidence that his service-connected bilateral hearing loss and tinnitus actually render him unable to secure and follow a substantially gainful occupation. Accordingly, the Board finds the preponderance of the evidence is against the Veteran’s claim that he was not capable of performing the physical and/or mental acts required by employment due to service connected disabilities. As the preponderance of the evidence is against his claim, a schedular TDIU is not warranted. While the Board has considered the applicability of the benefit of the doubt doctrine, it is not applicable because the preponderance of the evidence is against his claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel