Citation Nr: 18154385 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 17-13 866 DATE: November 29, 2018 ORDER A rating in excess of 10 percent for a back disability is denied. Service connection for bilateral hearing loss is denied. Service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran had chronic back pain, but his back was shown to have full range of motion, and was not shown to have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. The evidence does not support a finding that the Veteran had bilateral hearing loss that either occurred or noted during or within 1 year after separation from service, or otherwise etiologically related to his service. 3. The evidence does not support a finding that the Veteran had sleep apnea that either occurred during or within 1 year after separation from service, or otherwise etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran’s back disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for service connection for bilateral hearing loss were not met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.309, 3.385. 3. The criteria for service connection for sleep apnea were not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1965 to May 1969. He died in December 2013. The appellant is the Veteran’s widow and has been recognized as the eligible substitute claimant in the current appeal. A motion to advance this appeal on the Board’s docket has been raised by the appellant. The undersigned is granting the motion and advancing the appeal on the docket based upon a finding that the appellant is under severe financial hardship. 38 C.F.R. § 20.900(c). As such, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Rating The Veteran was rated at 10 percent for his back disability at the time of his death. The appellant is seeking for a higher rating. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current formula for rating IVDS based on incapacitating episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Here, the evidence of record does not show that the Veteran had IVDS. Neither VA treatment records nor other medical records suggest that the Veteran had IVDS. Moreover, there is no indication that he had been prescribed bed rest to treat any episodes of IVDS, and since prescribed bed rest is a foundational requirement for a rating under these criteria, the absence of such precludes the assignment of a rating based on incapacitating episodes. As such, a rating based on IVDS is not appropriate and the Veteran’s back disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which provides a 10 percent rating when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; when, muscle spasm, guarding, or localized tenderness is present but does not result in an abnormal gait or abnormal spinal contour; or, when there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DC 5242. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Here, the VA treatment records show that the Veteran had chronic back pain that appeared from time to time. A physical examination in June 2012 showed that the Veteran had no back pain or gout. In September 2012, the Veteran reported that he got episodes of lower back pain about 5/10 on pain severity scale, and the doctor did not find a need of analgesics at that point. In May 2013, the Veteran reported that he had back pain episode at 4/10 severity scale and pain radiated along both sides of his hips and down both legs, and that he took 1000 mg Tylenol and it helped to ease the pain. The records indicate that the Veteran had full range of motion of his back. A physical examination in September 2012 showed full range of motion without swelling or tenderness. A physical examination in May 2013 revealed tenderness on palpation along spine at belt line, but the Veteran was able to bend over slowly to 90 degrees with a slight pull sensation only, and he was also able to stretch his right and left hand laterally to the knee level. A physical examination on musculoskeletal in October 2013 again showed full range of motion without swelling or tenderness. Additionally, the records do not indicate any muscle spasm or guarding. Thus, the evidence does not support a rating in excess of 10 percent. As discussed before, a 20 percent rating requires forward flexion of the lumbar spine limited to 30 degrees or less, or combined range of motion limited to 120 degrees; or muscle spasm or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Here, while no VA examination was conducted specifically to assess the back disability, several physical examinations conducted during treatment sessions show that, regardless of the pain, the Veteran’s back retained full range of motion and there was no evidence of severe muscle spasm or guarding. In reaching its conclusion, the Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202(1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, as the records indicated, even considering the pain, the Veteran was able to demonstrate full range of motion in his back, he did not meet the functional loss criteria for a 20 percent rating. As a 10 percent rating was already assigned to the Veteran to compensate for his pain, absent evidence of functional loss worse than 10 percent evaluation, a rating in excess of 10 percent based on functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not warranted. The Board must also evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. However, here, while the Veteran occasionally complained about radiating pain, the VA treatment records are absent of any diagnosis of a neurologic disability secondary to the service connected back disability. For example, in October 2013, it was noted that no neurologic disease was present. In sum, evidence does not support a rating in excess of 10 percent under the Formula for Rating IVDS, or General Rating Formula for Diseases and Injuries of the Spine, or on the basis of functional loss due to pain or weakness under 38 C.F.R. §§ 4.40 and 4.45. A rating in excess of 10 percent for back disability is denied. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.§ 1110; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service connected disability. 38 C.F.R.§3.310 (a). Hearing Loss The appellant is seeking service connection for bilateral hearing loss, which she believes, resulted from the noise exposure that the Veteran experienced in the military when he served as a jet engine mechanic in the air force. The military personnel records show that the Veteran was a jet engine mechanic in the air force, thus, noise exposure in service is conceded. 38 U.S.C. § 1154(a). However, military noise exposure alone is not considered to be a disability, rather, it must be shown that the military noise exposure caused hearing loss for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R.§3.385 The private treatment records in September 2012 confirmed the presence of hearing loss in both ears for VA purposes. Specifically, the auditory threshold in each of the frequencies 1000, 2000, and 4000 Hertz was greater than 40 decibels in both ears. The question is whether the Veteran’s hearing loss is caused by his noise exposure in the military. Service treatment records (STRs) do not suggest that hearing loss was present during service. The results of April 1965 audiometric testing in connection with the Veteran’s enlistment physical (after converting from ASA standard to ISO-ANSI standard) are: Frequencies 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000Hz Right Ear 15 10 10 10 5 Left Ear 15 10 10 10 5 The results of February1969 audiometric testing in connection with his separation physical (after converting from ASA standard to ISO-ANSI standard) are: Frequencies 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000Hz Right Ear 15 10 10 10 5 Left Ear 15 10 10 10 5 The above testing results suggest that the Veteran’s hearing acuity was the same at the time of the separation as it was at the time of his enlistment. The VA treatment records show that the Veteran first sought treatment for hearing impairment in November 2011, more than 40 years after separating from service, when he went to the mobile clinic and was prescribed to use Debrox daily to both ears for a month and then once a week. No improvement in hearing was seen after the treatment. In June 2012, the Veteran again sought treatment for hearing problems and he reported that he had 7- month history of impaired bilateral hearing. In September 2012, the doctor assessed his hearing impairment and found no need for interventions at that point as it was not bothersome to the Veteran, although the records in July 2013 indicated that the Veteran was wearing hearing aids at a later time. In sum, while the Veteran may have had hearing loss at the time of his death, the evidence does not show that hearing loss was either diagnosed or noted during service or within 1 year after separation from service. According to the Veteran’s own report, his hearing impairment started in 2011, more than 40 years after separation from service. Additionally, there was no other medical evidence indicating that his hearing loss was caused by his service. Although the appellant thinks otherwise, her opinion does not constitute competent medical evidence because the etiology of hearing loss is not the type of issue that is readily amenable to a lay person, and there is no evidence showing that the appellant has the requisite medical training or expertise to reach such conclusion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, service connection for hearing loss is denied. Sleep Apnea The appellant is seeking service connection for sleep apnea, which she believes, resulted from the Veteran’s back pain, the noise exposure in the military and his hearing loss. The VA treatment records show that the Veteran had sleep apnea and he was using a CPAP in 2013. The question is whether his sleep apnea was caused by his military service. STRs do not show any complaints, symptoms or treatment of sleep apnea during service. The private treatment records show that the Veteran had sleep difficulties as early as 2010 and he was treated by low dose of Ambien. The VA treatment records documented that the Veteran had sleep apnea as early as 2011. However, there is no description of symptomatology in-service or soon after which my support the conclusion that the Veteran’s sleep apnea onset in service. (Continued on the next page)   The earliest medical records document his sleep apnea was in 2011, more than 40 years after separation from service. There was no other medical evidence indicating, or even suggesting, that his sleep apnea was caused by his service or by a service connected disability. Although the appellant thinks the Veteran’s sleep apnea was caused by his service connected back disability, and was related to his noise exposure in service, as well as his hearing loss, her opinion does not constitute competent medical evidence because the etiology of sleep apnea is not the type of issue that is readily amenable to a lay person, and there is no evidence showing that the appellant has the requisite medical training or expertise to reach such conclusion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, service connection for sleep apnea is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Q. Wang, Associate Counsel