Citation Nr: 1817474	
Decision Date: 03/23/18    Archive Date: 04/03/18

DOCKET NO.  14-28 477	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for a deviated septum.

2.  Entitlement to service connection for sinusitis.

3.  Entitlement to service connection for obstructive sleep apnea.

4.  Whether new and material evidence has been received to reopen a claim of service connection for right ear hearing loss, and if so, whether service connection is warranted.


REPRESENTATION

Veteran represented by:	Alan A. Watt, Agent




WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Polly Johnson, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1973 to September 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California which denied, in part, service connection for a deviated septum, sinusitis, sleep apnea, and hearing loss.

The Board observes that, in a June 1994 rating decision, the RO denied, in pertinent part, the Veteran's claim of service connection for bilateral hearing loss.  He did not appeal the decision and it became final.  See 38 U.S.C. § 7104 (2012).  He also did not submit any relevant evidence or argument within one year of the June 1994 rating decision which would render it non-final for VA adjudication purposes.  See Buie v. Shinseki, 24 Vet. App. 242, 251-252 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b) (2017)).

The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented.  Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for right ear hearing loss is as stated on the title page.  Regardless of the RO''s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim.  That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

The Board notes that the Veteran's appeal originally included the issue of entitlement to an increased rating for degenerative arthritis of the spine.  See July 2014 Statement of the Case.  However, he did not perfect an appeal as to that issue.  Rather, the Veteran specifically limited his appeal to the issues listed on the title page in his August 2014 substantive appeal.  Therefore, that matter is no longer on appeal, and no further consideration is necessary.

In addition, the RO granted service connection for cervical spine degenerative disc disease and left ear hearing loss in a July 2014 rating decision.  As such is a full grant of the benefits sought on appeal with respect to such claims, and the Veteran has not appealed either the evaluation or effective date assigned to those disabilities, such are not before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  

The Veteran testified at a November 2017 videoconference hearing.  A transcript of the hearing is of record.

The issues of entitlement to service connection for a deviated septum and sinusitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Resolving reasonable doubt in his favor, the Veteran's obstructive sleep apnea had its onset in service.

2.  By a June 1994 rating decision, the RO denied entitlement to service connection for bilateral hearing loss; the Veteran did not perfect an appeal, and no new and material evidence was received within one year of the determination.

3.  Evidence received since the June 1994 rating decision is either cumulative or redundant, and does not relate to an unestablished fact necessary to establish the claim, or raise a reasonable possibility of substantiating the claim of entitlement to service connection for right ear hearing loss.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for obstructive sleep apnea have been met.  38 U.S.C. §§ 1101, 1110, 1131, 1154, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).

2.  The June 1994 rating decision that denied service connection for bilateral hearing loss is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

3.  The criteria for reopening a claim of entitlement to service connection for right ear hearing loss have not been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Procedural Duties

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  Neither the Veteran nor his representative has raised any issues with the duty to notify or to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


II. Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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).

Sleep Apnea

The Veteran contends that he has sleep apnea as a result of his active duty service.  He reported experiencing severe snoring problems during service and discovering later that he suffered from obstructive sleep apnea.  See November 2011 Veteran's Correspondence. 

Initially, the Veteran has a diagnosis of obstructive sleep apnea.  See November 2000 Naval Medical Center Record.  

In support of his claim, the Veteran submitted a private medical opinion dated September 2016 and authored by a Board Certified Sleep Specialist.  The examiner noted a face to face consultation with the Veteran as well as a full review of the record.  It was her opinion that the Veteran's sleep apnea developed during his years of active duty.  She noted his initial diagnosis of sleep apnea in 2000 and stated that the development of sleep apnea takes place over the course of an individual's adulthood, usually beginning with mild and intermittent snoring and gradually worsening, with more disruptive and persistent snoring, more frequent breathing pauses, more oxygen desaturation episodes, and more sleep impairment.  It was the examiner's opinion, given his medical and sleep history, that his sleep apnea developed during the time period 1985-1990 while on active duty.  She noted that the Veteran was told by others that he snored disruptively during sleep and was observed to stop breathing while sleeping.  

The examiner cited to a service treatment record from September 1993 indicating that the Veteran was referred to an ear, nose, and throat specialist because of "persistent hoarseness" and the "need to clear throat."  The ENT specialist documented globus sensation in the mornings as well as persistent hoarseness, which the examiner explained were symptoms of the chronic irritation and inflammation of the oropharynx due to snoring and apnea.  The examiner also noted that untreated sleep apnea could lead to other medical disorders and abnormalities, some of which the Veteran had, like diabetes, sinusitis, and nasal congestion.  

Given the foregoing, it was the examiner's opinion that the Veteran's sleep apnea was more likely than not related to his active duty service.

The evidence is clear that the Veteran has a current diagnosis of obstructive sleep apnea.  Additionally, the Veteran has asserted that he experienced snoring and trouble sleeping in service.  Accordingly, the first and second elements of service connection are met, and the remaining question therefore becomes whether there is a "nexus" between the Veteran's claimed in-service snoring and sleep trouble and his current sleep apnea.

There is one medical opinion of record.  As noted, the September 2016 private examiner based her opinion on a full review of the Veteran's record as well as a face to face consultation with the Veteran.  Moreover, the opinion provides a clear conclusion and rationale and is supported by medical literature.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Accordingly, the Board affords high probative value to the opinion, and finds that service connection for obstructive sleep apnea is warranted.

Right Ear Hearing Loss - New and Material Evidence

Historically, the Veteran filed a claim for service connection for bilateral hearing loss (VA Form 21-526) in October 1993.  The Board notes that service connection for left ear hearing loss was granted in a July 2014 rating decision.

The Veteran's service treatment records (STRs) show that the Veteran had an entrance examination in September 1973; an audiometric examination revealed pure tone thresholds of 5, 5, 5, 0, 5, and 5 at the 500, 1000, 2000, 3000, 4000 and 6000 Hertz levels in the right ear.  He had a retirement examination in June 1993; an audiometric examination at that time revealed pure tone thresholds of 5, 5, 15, 20, 20, and 20 at the 500, 1000, 2000, 3000, 4000 and 6000 Hertz levels in the right ear.

The Veteran was afforded a VA audiometric examination in December 1993; at that time, the Veteran reported experiencing noise exposure in service from aircraft carrier noise.  The examination revealed pure tone thresholds of 5, 10, 5, 15, and 15 at the 500, 1000, 2000, 3000, and 4000 Hertz levels, indicating normal hearing in the right ear.  Speech recognition was 100 percent in the right ear.

By a rating action in June 1994, the RO denied the Veteran's claim of entitlement to service connection for bilateral hearing loss.  The decision was based on a finding that hearing was shown to be within normal limits for VA purposes.  The Veteran did not file a notice of disagreement (NOD) with that determination within one year of the notification thereof.

Consequently, as no timely NOD or new and material evidence was received during the appeal period following the June 1994 rating decision, that decision became final.  See 38 C.F.R. § 3.156(b); Buie, 24 Vet. App. at 252; 38 C.F.R. §§ 20.200, 20.201, 20.1103.  New and material evidence is therefore required to reopen the claim of service connection for right ear hearing loss (service connection for left ear hearing loss was granted in a July 2014 rating decision).  See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156.

The Veteran's request to reopen his claim for service connection for hearing loss was received in November 2011.  Submitted in support of the claim were lay statements from himself, his children, and his wife.

The Veteran was afforded a VA audiological examination in July 2013.  Pure tone thresholds, in decibels, for the right ear, were as follows:

Pure tone Threshold

500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
Right Ear
20
20
15
20
15
  
Speech audiometry revealed speech recognition ability of 100% in the right ear.  The examiner stated that the Veteran had normal hearing in his right ear.

At his November 2017 Board hearing, the Veteran testified that he was exposed to aircraft carrier noise for many years while in service.  See November 2017 Hearing Transcript at p. 24.  

First, the Board finds that the Veteran's November 2017 testimony of acoustic trauma and hearing loss since service is cumulative of the evidence considered at the time of the June 1994 rating decision.  Such cumulative evidence does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156.

The Board does find that some of the evidence received since the June 1994 rating decision is new in that it was not previously of record.  However, the Board notes that, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 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 are greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent.  See 38 C.F.R. § 3.385.

As such, the Board finds that the newly submitted July 2013 VA examination is not material as it continues to show that the Veteran does not have right ear hearing loss for VA purposes.  Moreover, with respect to the submitted lay statements, to the extent that they support the Veteran's contention that he struggles with his hearing, the Board finds them to be cumulative as the RO considered that assertion in the June 1994 denial.  Therefore, the lay statements do not constitute new and material evidence.  Accordingly, the Board finds that new and material has not been presented to reopen the Veteran's previously denied claim for service connection for right ear hearing loss. 


ORDER

Service connection for obstructive sleep apnea is granted.

New and material evidence not having been received; the claim for service connection for right ear hearing loss is not reopened.


REMAND

The Veteran has not been afforded a VA examination regarding his service connection claims for a deviated septum and sinusitis.  A review of the Veteran's service treatment records confirm that the Veteran experienced nasal congestion in service and in September 1993 complained of a post nasal drip.  On his June 1993 separation report of medical history, the Veteran checked the box indicating that he experienced chronic coughing.  Moreover, the clinician who authored the September 2016 opinion with respect to the Veteran's obstructive sleep apnea noted that sleep apnea may lead to other conditions that the Veteran currently has, to include sinusitis.  In light of the grant of service connection herein for sleep apnea, as well as the instances in service where the Veteran complained of sinus congestion and hoarseness, the Board finds that the Veteran should be afforded a VA examination for his claimed sinusitis and deviated septum.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).


Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and request that he identify, submit, or authorize VA to obtain any VA or private treatment records not already on file that he believes are pertinent to his appeal.

2.  Schedule the Veteran for a VA examination with an examiner of appropriate expertise to determine the etiology of his claimed sinusitis and deviated septum.  The examiner is asked to respond to the following:

(i) Identify whether the Veteran has diagnoses of sinusitis and/or a deviated septum;

(ii) If either is diagnosed, provide an opinion as to whether each disability at least as likely as not (50 percent or greater probability) was incurred in, or is otherwise related to, the Veteran's period of active duty service.

(iii) If either is diagnosed, provide an opinion whether either disability at least as likely as not (50 percent or greater probability) is caused or aggravated by the Veteran's service-connected sleep apnea.

(iv) In forming his or her opinion, the examiner is requested to discuss the Veteran's service treatment records showing complaints of sinus congestion, chronic coughing, and hoarseness in service.

2.  Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs