Citation Nr: 18155699 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 12-02 760 DATE: December 6, 2018 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for obstructive sleep apnea, claimed as secondary to post-traumatic stress disorder, and medication for a service connected back disability is denied. FINDINGS OF FACT 1. The Veteran does not have a left knee disability at any time during the period of the appeal. 2. The Veteran’s bilateral hearing acuity loss does not meet the VA criteria for disability at any time during the period of the appeal. 3. The Veteran’s obstructive sleep apnea manifested after service and was not caused by injury or disease in service or aggravated by service-connected PTSD or medication used for service-connected orthopedic and neurological disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 3. The criteria for entitlement to service connection for obstructive sleep apnea have, claimed as secondary to post-traumatic stress disorder, and medication for a service connected back disability, have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from April 1988 to March 1992 with duties as an air traffic controller and with service in Southwest Asia. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 24, 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In December 2017, the Board reopened previously denied claims for bilateral hearing loss and left knee disability and remanded those issues, along with the claim for sleep apnea, for additional development. Duty to Notify and Assist Neither the Veteran nor his representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. Service Connection Generally, to establish service connection a Veteran 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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). With respect to hearing loss, VA has specifically defined what is meant by a “disability” for the purposes of service connection: “[I]mpaired 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A veteran is not required to show that hearing loss was present during active military service in order to establish service connection. See Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). Rather, he/she may establish the required nexus between his/her current hearing disability and his/her term of military service by showing that his/her current hearing disability resulted from personal injury suffered in the line of duty. Id. Claims for service connection must be considered on the basis of the places, types and circumstances of a claimant’s military service. 38 C.F.R. § 3.303 (a). Secondary service connection may be granted for a disability that is proximately due to a service-connected disease or injury, or that a service-connected disease or injury aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.310. 1. Left Knee Service treatment records (STRs) show that the first in-service report of left leg symptoms was on March 26, 1990. The Veteran reported left knee pain, and a clinician diagnosed a hamstring sprain. On May 7, 1991 the Veteran was diagnosed with tendonitis in his left leg and was advised to perform stretching exercises. On May 10, 1991 the Veteran reported radicular pain to the left leg that was assessed in June 1991 as a possible sciatic nerve deficit and ultimately a herniated disc at L4/5. In October 1991, a medical evaluation board found that the Veteran had been symptomatic for low back pain, radiating to the left lower leg since February 1990. He had been placed on limited duty as an air traffic controller but his symptoms had not resolved. There was no mention of a chronic knee disability. In February 1992, he received an honorable medical discharge for the spinal disability with radiculopathy. In a February 1992 discharge physical examination, the Veteran acknowledged the on-going herniated disc symptoms but denied any left knee deficits. A neurosurgery note, from April 17, 1996, noted that the Veteran was having pain that ran from his back down his left leg and included knee pain. Numbness was reported by the Veteran, as were issues with standing, walking, and sitting. An MRI was performed and the Veteran was diagnosed with radiculopathy, the issues were attributed to the Veteran’s herniated disc. A VA examination on September 3, 2010 found that the Veteran had a “normal” left knee. The examiner stated that after a surgical procedure on the spine to remedy the Veteran’s radiculopathy, the Veteran was no longer experiencing radiculopathy in the left leg. The examiner also noted that the Veteran was diagnosed with tendinitis on May 7, 1991, but said that this was more of a radicular pain at the time, and that based on the May 7, 1991 notes it was “impossible” to determine whether he had knee pain or radicular pain at that time. Additionally, the examiner stated that there were no chronic issues with the left knee since service, and that his X-rays were within normal limits. The knee pain was attributed to a “positional situation” which caused a “pinching sensation” which could lead to some sharp pain. That pain was not brought on by a “post-traumatic event” and had no bearing or relationship to service. The Veteran has been granted service connection for herniated disc of the lumbar spine and for radiculopathy of the left lower leg since service and now each currently as 40 percent disabling. The March 2, 2018 compensation and pension (C&P) examiner said the Veteran did not have a left knee disability. Testing revealed the Veteran had full range of motion, no pain on weight bearing, no crepitus, no ankylosis, full muscle strength, and no meniscal conditions. The knee pain during service was noted, but the examiner stated, “there is no objective evidence to warrant a diagnosis of a left knee disability/condition at this time.” The examiner did not find a pathology for a chronic knee issue from service, and attributed his current pain to issues with the sciatic nerve; he also stated there was no joint issue. The pain did not cause a functional impact. Analysis The Board concludes that the Veteran does not have a current diagnosis of a left knee disability 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 great weight of evidence in the STRs shows that the Veteran’s pain in service in the left leg was assessed as hamstring pulls, tendinitis, and ultimately radiculopathy from a herniated disc. There is no evidence of a knee disorder. The Board acknowledges that the Veteran experiences some current knee pain, and a recent Federal Circuit decision held that pain alone can serve as a functional impairment, and therefore can qualify as a disability. Saunders v. Wilkie, 886 F.3d 1356 (2018). However, even in light of Saunders, the Veteran still does not have pain that results in any functional loss or functional impairment. As above, based on such evidence, the Board finds that this case is distinguished from Saunders. Therefore, entitlement to service connection for a left knee disability is denied. 2. Bilateral Hearing Loss Service treatment records (STRs) show that the Veteran twice complained about pain in his ears; once on May 2, 1991 (he reported he felt his ears wanted to explode), and on January 6, 1992 he reported “popping” in his left ear. He did not make any complaints about hearing trouble, and at separation his audiological examination was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 10 LEFT 5 0 0 10 5 Speech audiometry was not tested. The Veteran also denied any hearing loss. On October 8, 2008, the Veteran submitted some literature on tinnitus and noise-induced hearing loss. He highlighted sections on M-16 rifles, military weapons, F-15 fighter jets, helicopters, and large trucks; as well as bullet points stating that hearing loss caused by loud noise is the most common injury in the Army, and that “[a] noise-caused hearing loss is most often characterized by hearing, but not understanding.” A VA examination was conducted on September 3, 2010. The examiner noted that the Veteran’s hearing was normal at separation. Additionally, noise exposure during service included firearms, machine guns, mortars, missile launchers, firing range, helicopters, heavy artillery, and combat explosions—for all of these, hearing protection was used. Hearing protection was not used around tanks, aircraft engines, on the flight line, or near electrical generators. The Veteran reported that, once during service, a grenade went off near his left ear and caused him to lose hearing. He also endorsed ear infections since 2006. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 15 LEFT 20 15 25 20 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear. The examiner also explained that the Veteran’s ear “popping” during service was due to an upper respiratory infection (URI) which commonly causes temporary tinnitus. No hearing loss was found on this examination. In the Veteran’s January 12, 2012 substantive appeal, he reported that his hearing acuity was “getting worse,” and that people continually had to speak loudly to him so that he could hear. On the authorized audiological evaluation on March 1, 2018, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 20 20 LEFT 25 20 20 30 30 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear. The right ear had hearing within normal limits, and the left ear had sensorineural hearing loss between 500-4000Hz and at higher frequencies. An opinion was provided for the left ear, the examiner stated, Per DD Form 214 and claimant report, claimant served in the Marines as an Air Traffic Controller and was regularly and repeatedly exposed to noise from aircraft while working near the flight line. In addition, claimant stated he had a grenade go off near his left ear in basic training which resulted in tinnitus for the rest of the day. The examiner did note that the sensorineural hearing loss was at least as likely as not caused by military service, and that the hearing loss impacted functioning because people needed to repeat things to the Veteran. However, the Veteran stated that he did not feel he had much trouble hearing. The examiner also stated that the Veteran had a current hearing loss disability for VA purposes in his left ear. Analysis While the March 2018 VA examiner found that the Veteran has hearing loss for VA purposes in the left ear, the actual findings of the examination do not show that the loss meets the VA criteria for disability. Hearing loss for VA compensation purposes requires a 40-decibel loss at any one frequency from 500 to 4000Hz, at least a 26-decibel loss at any three of those frequencies, or a speech recognition test below 94 percent. 38 C.F.R. § 3.385. The Veteran’s highest decibel loss is 30, he has not lost at least 26 decibels at three frequencies, and his Maryland CNC testing is not below the 94 percent threshold. Although the Veteran has experienced some hearing loss it is, to this point, not hearing loss that is considered a disability for VA purposes. Since he does not have hearing loss for VA compensation purposes, entitlement to service connection for bilateral hearing loss is denied. 3. Obstructive Sleep Apnea STRs do not mention any issues with sleep. At separation the Veteran denied having any sleep issues. A sleep study was performed on March 25, 2008 and the Veteran was diagnosed with obstructive sleep apnea. The Veteran reported that he began snoring prior to service. He reported kicking his bunkmate in service while he was struggling for air, and that he has bad dreams and trouble sleeping that cause him to wake up 2-4 times per night. He also experienced “excessive daytime somnolence.” The Veteran was advised to lose 40 pounds over the proceeding 18-24 months. Several lay statements were submitted by the Veteran when he filed his claim for service connection for sleep apnea. In a letter dated April 5, 2008, an unidentified person noted that between 1992 and 1995, he was around the Veteran and remember him snoring, and that he would sometimes stop breathing for 10-15 seconds. On April 26, 2008 another service member submitted a statement noting that he remembered the Veteran making noises that sounded like struggles with breathing, and that he would have to shake the Veteran hard to wake him up. The remaining lay statements were not dated, but they were submitted on May 29, 2008. One letter was from another person who served with the Veteran. He also reported that he would wake the Veteran up when it seemed the Veteran stopped breathing, and also mentioned the Veteran’s back medicine being a problem. The final letter came from a college classmate who roomed with the Veteran from May to August 2002. She noticed issues with his sleep and that the Veteran would stop breathing at times throughout the night. The Veteran also submitted his own statement on May 29, 2008. He reported snoring and breathing issues since service. He said that at the time he did not know what the issue was and therefore did not report it, but he eventually told his primary care doctor about his breathing issues and was referred to a specialist. The Veteran reported he always snored even when he was not obese. The sleep specialist, reportedly, also told the Veteran that the medication he was taking for his back caused aggravation. An August 26, 2015 C&P exam provided an opinion as to whether the Veteran’s sleep apnea was at least as likely as not related to service-connected post-traumatic stress disorder (PTSD). The examiner opined, It is less likely than not that the Veteran’s sleep apnea was caused by the Veteran’s SC PTSD. Review of credible peer-reviewed medical literature does not show PTSD as a risk factor for the development of sleep apnea. There is no physiologic basis for PTSD to cause sleep apnea. Based on review of initial VA sleep consult 2/20/2008, the Veteran had multiple risk factors for development of OSA. His 80-pound weight gain over six years after military separation is probably the most significant risk factor. Additionally, the Veteran was noted to have multiple abnormalities of the orpharyngeal and neck regions on physical exam of the same date. His airway was described as Class IV, which is the most narrowed and most concerning for sleep apnea. Of note, the Veteran also reported a lifelong history of snoring at this evaluation, suggesting OSA symptoms may have been present prior to military service. He also had risk factors of nasal congestion . . . and male sex. A June 16, 2017 C&P examination also found no link between military service and the Veteran’s sleep apnea. It noted previous findings of obesity and narrow airway. The Veteran’s weight at that time was 255-pounds, he continued reporting issues breathing while he slept in-service. The examiner pointed out that the Veteran did not report any sleep issues until 15 years after service. This time, the examiner was asked if PTSD with alcohol abuse was aggravating the Veteran’s sleep apnea beyond its natural progression. She concluded that PTSD with alcohol abuse was not aggravating the Veteran’s sleep apnea. She noted that worsening was not evident because there were no complaints of fatigue or excessive daytime sleepiness since 2008. The C&P examiner on March 2, 2018 noted that sleep apnea impacts occupational functionality because of persistent daytime hypersomnolence. Once again, however, the examiner opined that the Veteran’s sleep apnea was less likely than not due to military service. He stated that sleep apnea was not diagnosed until years after service, and that there was no pathology from service that showed a connection to service. The examiner again said that PTSD does not cause or aggravate sleep apnea since PTSD is behavioral and sleep apnea relates to a “physically large tongue obstructing the airway.” The examiner also responded to the notion that the Veteran’s back medication was aggravating his sleep apnea. He said, Review of the evidenced based literature does not support that the nonsteroidal anti-inflammatory drugs the Veteran is using for pain control causes a primary sleep disorder/obstructive sleep apnea. The nonsteroidal anti-inflammatory drugs do not cause large tongues that cause obstructed airways. The nonsteroidal anti-inflammatory drugs are not medically known to result in obstructive sleep apnea. The medical literature did not support the theory that the Veteran’s pain medication aggravated his sleep apnea. Analysis VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed. Cir. 2007). Loud snoring and trouble breathing are observable symptoms, and the Board acknowledges that all the lay statements submitted are competent and credible. However, sleep apnea can only be diagnosed by a sleep study, which did not occur until March 2008. The lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Upon separation and for the 15 years after, the Veteran reported several health issues that he attributed to service; including his back, knees, and hearing. During this time, he did not report an issue with sleeping or interrupted breathing when there was an opportunity to do so and obtain treatment. Even though he reported that he did not know what sleep apnea was, he denied any sleep related deficits at the time of discharge and had several opportunities to report his symptoms while he was also reporting other health related issues. Not until 2008 did he mention trouble breathing. This was after he gained 80-pounds after post-service. The Board acknowledges the lay statements reporting observations of interrupted breathing during and shortly after service. However, the Board assigns less weight to the retrospective observations and greater weight to the Veteran’s denial of any sleep related symptoms at discharge and to the lack of reporting of these symptoms to medical care providers for many years prior to seeking compensation. Additionally, the weight of competent medical opinions attributed his sleep apnea to his weight and his narrow airways, a developmental, structural abnormality which could have been present prior to service given the Veteran has explained that his snoring began when he was a teenager. However, this possible congenital deficit has not been found to have been aggravated by service or any service-connected disability. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The examiner in March 2018 thoroughly explained that medication or PTSD has not aggravated the Veteran’s sleep apnea. Since the medication and PTSD do not aggravate or cause the Veteran’s sleep apnea, service connection on a secondary basis is also not warranted. Medical evidence shows that sleep apnea was due to post-service weight gain, it does not show that sleep apnea was caused by service or that it is secondary to any service connected condition. (Continued on the next page)   Therefore, entitlement to sleep apnea, claimed as secondary to PTSD and/or medication for a service-connected back disability, is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel