Citation Nr: 18142275 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-33 719 DATE: October 15, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the evidence of record shows that the Veteran’s bilateral hearing loss is at least as likely as not related to in-service noise exposure. 2. The preponderance of the evidence does not demonstrate that the Veteran’s sleep apnea began in or is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is related to active service. 38 U.S.C. §§ 1110, 1111, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.385. 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was on active duty from June 1972 to June 1977 and from September 1979 to September 1994. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. A transcript of the hearing is of record. Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection, generally, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). In addition, certain chronic diseases, such as organic diseases of the nervous system to include sensorineural hearing loss and tinnitus, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr, supra, at 307; see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system to include sensorineural hearing loss. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is related to his active duty service. The threshold for normal hearing is from zero to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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 Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. The Veteran claims that he has bilateral hearing loss as a result of acoustic trauma during active duty as a result of his work as a combat engineer officer and facilities/contract construction management engineer officer. The Board notes that the Veteran’s service treatment records were deemed unavailable with limited records having been submitted by the Veteran. Nevertheless, the Veteran’s available service treatment records do show some complaints involving the ear. A September 1980 Report of Medical Examination contains complaints of right ear pain and the Veteran’s Report of Medical History on retirement contains notes that hearing loss is documented. The Board finds that the reported exposure to hazardous noise is consistent with the facts and circumstances of the Veteran’s active service. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. The Veteran was provided with a VA audiological examination in January 2014. The Veteran’s reported puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 60 65 LEFT 20 20 15 40 65 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The examining VA audiologist opined that it was less likely than not that the Veteran’s current hearing loss was incurred during military service. In support thereof, the examiner noted normal hearing examinations at entrance and upon discharge from service. The Veteran underwent a private audiological examination in September 2016. The Veteran’s reported puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 60 65 LEFT 25 25 10 60 60 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear. The physician opined that the Veteran’s hearing loss is more likely than not related to noise exposure during active service. The Board finds the evidence of record is in equipoise. Although the January 2014 VA examiner found it was less likely than not that the Veteran’s current hearing loss was incurred in service, the examiner only considered the Veteran’s active duty service, which did not indicate hearing loss for VA purposes. However, VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service, Hensley, 5 Vet. App. at 157 (1993), and the Veteran currently has bilateral hearing loss for VA purposes. Therefore, the Board finds the opinion inadequate. Accordingly, the inadequacy of the VA opinion renders no opinion more probative than the other. In conclusion, the Board has conceded acoustic trauma during active service. The Veteran has competently reported that he first experienced hearing loss and tinnitus while in active service and that he has continued to experience hearing loss and tinnitus since that time, and those statements have been found credible. Accordingly, as the evidence for and against the Veteran’s claim is at least in equipoise, reasonable doubt must be resolved in favor of the Veteran. Therefore, the Veteran’s claim seeking entitlement to service connection for bilateral hearing loss disability are granted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for obstructive sleep apnea The Veteran maintains that his currently diagnosed obstructive sleep apnea is related to his active service. More specifically, the Veteran alleges that a boxing accident during service resulted in a broken nose, which is responsible for his current obstructive sleep apnea. The evidence of record demonstrated that sleep apnea was first diagnosed in 2012 following a sleep study. In a May 2015 opinion, a VA medical professional determined that it is less likely than not (less than a 50 percent probability) that the Veteran’s sleep apnea began in or is etiologically related to his active duty service. The medical professional reasoned that service treatment records from the Veteran’s first period of active duty service did not demonstrate any complaints, diagnosis, treatment, injury, or other events related to sleep patterns and/or dysfunction secondary to a nasal condition. The examiner acknowledged that the limited available service treatment records indicate that the Veteran had a history of a deviated septum as a result of a fracture nose with deviated nasal septum. However, even conceding that this incident occurred, the record does not contain evidence that the deviated nasal septum caused the Veteran any respiratory problems. According to the examiner, a February 1992 nasal outpatient procedure was primarily cosmetic and involved the removal of an under the nose skin lesion. The examiner further noted that it is well known clinically that obstructive sleep apnea is caused by anatomic collapse or narrowing of the pharyngeal airway and not the nasal airway. The examiner noted that OSA is most commonly induced by obesity and noted that it is more likely that the apnea is due to the Veteran’s post-service obesity. Based on the foregoing, the Board finds that service connection for sleep apnea is not warranted. The May 2015 opinion finding a negative relationship between the Veteran’s sleep apnea and his active duty service, deviated septum, and PTSD is highly probative as it is based on an accurate factual background and a review of the evidence of record that the Board can not ignore. In support of his claim, the Veteran submitted a copy of a Board decision for a different veteran which granted service connection for sleep apnea as secondary to PTSD. However, decisions of the Board are not precedential in nature and are decided on the facts of each individual case; the conclusions reached in a similar Board decision cannot be extended to another. See 38 C.F.R. § 20.1303 (2017). The Board has also considered statements from the Veteran regarding his sleep apnea symptoms. The Board recognizes that the Veteran may sincerely believe that his sleep apnea began in or is etiologically related to his active duty service. While the Veteran is competent to report symptoms he experiences and those close to him are competent to report witnessed symptoms, there is no evidence that they possesses the medical expertise required to competently opine as to the etiology of the Veteran’s sleep apnea. See 38 C.F.R. § 3.159 (a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Accordingly, service connection for sleep apnea is not warranted. The Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the Veteran’s claim, and it is not applicable. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel