Citation Nr: 18151482 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 17-24 882 DATE: November 19, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The evidence of record supports a finding of a nexus between the in-service acoustic trauma and the Veteran's current diagnosis of bilateral hearing loss. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served the United States Marine Corps from July 1979 to December 2000. This matter comes to the Board of Veterans' Appeals (Board) from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2017). The requirement for a current disability requirement to establish service connection is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Entitlement to service connection for bilateral hearing loss The Veteran claims that his hearing loss is due to noise exposure to loud machinery in-service while serving as an electrician. Because there is no indication that the Veteran's hearing loss was manifested within one year of service, service connection is not available on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309(a). Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2017). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where the Veteran’s hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in active service and audiometric test results reflect an upward shift in tested thresholds while in such service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385 , and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. The first element is satisfied, in that both ears, according to the June 2016 VA examination, indicate auditory thresholds of 40 decibels or greater at frequencies of 2000, 3000, and 4000 Hz. On the authorized audiological evaluation in June 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 62 55 60 LEFT 20 30 50 65 60 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 84 in the left ear. The second element is satisfied, the in-service injury or disease, the Board notes that the record contains sufficient evidence that the Veteran's active service exposed him to acoustic trauma. The Veteran's personnel records confirm his service as an electrician exposed to loud machinery. As to the third element of a service connection claim, the nexus between the Veteran's hearing loss disability and the in-service noise exposure, the evidence is mixed. The Veteran is competent to provide statements to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran is not medically qualified to prove a matter requiring medical expertise. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the Veteran's claim that his hearing loss is related to active service is both competent and credible, his assertion alone is not sufficient to medically link his current hearing loss to the acoustic trauma he experienced in service. A June 2017 VA examination provided a negative nexus opinion. The examiner provided an opinion stating that the Veteran's hearing loss was not caused by or the result of military acoustic trauma due to the Veteran’s duties. This examiner was persuaded by the fact that the Veteran had entered and exited service with normal bilateral hearing. The examiner also noted that there was no evidence from his military service that shows he suffered any hearing loss while in service. However, the examiner did not provide an alternative cause or intervening factor for the Veteran’s hearing loss disability, and noted that the Veteran did not report noisy employment or hobbies after service, and there is no known history of ear disease, ear surgery, ear or head trauma, or familial hearing impairment. Thus, the Board finds that the examiner disregarded and did not adequately address the Veteran's claim of the in-service acoustic trauma being the cause of the Veteran’s disability. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service, and the opinion is found to support the proposition that the Veteran’s current hearing disability is at least in part related to service. Hensley, 5 Vet. App at 160. Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence or the existence of a positive nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where, as here, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, the Board finds that service connection of the Veteran’s bilateral hearing loss is warranted. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. The Veteran claims that his diagnosed sleep apnea was caused and aggravated by his service-connected posttraumatic stress disorder (PTSD). The Board regrettably finds that a remand for further development is warranted as there has not been a complete nexus opinion on this issue. The secondary service connection claim must be re-evaluated by a VA examiner. The June 2017 VA examiner noted that there is no known direct anatomical cause to connect sleep apnea with PTSD, however medical research has certainly suggested an increased incidence of sleeping problems and sleep apnea with PTSD. Moreover, the VA examiner did not complete the evaluation by addressing whether the Veteran’s PTSD could have aggravated the diagnosed sleep apnea, instead concluding that the Veteran’s sleep apnea was more likely than not caused by the Veteran’s morbid obesity, according to a 2015 sleep study. The VA examiner should also provide an opinion as to whether any of the symptoms associated or caused by the Veteran’s PTSD could have contributed or aggravated the Veteran’s sleep apnea, and if the Veteran’s morbid obesity may have been caused by or may be attributed to the Veteran’s PTSD. As the record indicates that the Veteran's sleep apnea may be related to the Veteran’s service-connected PTSD based on the additional theories noted above, he should be afforded an addendum opinion to further determine the nature and etiology of the disability. The matter is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, and obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded an addendum opinion by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed sleep apnea. If deemed necessary by the VA examiner, an in-person VA examination including any and all studies, tests, and evaluations should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The addendum opinion should note review of these records and the Veteran’s statements describing his in-service injury and any lay statements that the Veteran has provided. The examiner should then: (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea is related to his active military service. (b) Provide an opinion as to whether it is at least as likely as not that the Veteran’s service-connected PTSD caused or aggravated the Veteran’s morbid obesity, which then, in turn, caused his sleep apnea. (c) Provide an opinion as to whether it is at least as likely as not that the currently diagnosed sleep apnea was otherwise caused or aggravated by the Veteran's service-connected PTSD, to include symptoms caused by and the medication taken to treat his acquired psychiatric disorder. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel