Citation Nr: 20021648 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-27 495 DATE: March 26, 2020 ORDER Service connection for bilateral hearing loss is denied. Service connection for a sleep condition is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a bilateral hearing loss disability began during active service, within one year of separation from service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a sleep condition began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that hypertension began during active service, within one year of separation from service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for a sleep condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to December 1968. These matters were previously remanded by the Board of Veterans’ Appeals (Board) in February 2019. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). 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 that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as bilateral hearing loss and hypertension, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board also notes that service connection may be established for bilateral hearing loss and hypertension as chronic diseases and based on a continuity of symptomatology. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Lay statements may serve to support a service connection claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that service connection is warranted for bilateral hearing loss. See April 2017 VA Form 9. With respect to the first element of a service connection claim, impaired hearing will be considered to be a disability under VA regulations when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. In this case, the Veteran was provided an audiological evaluation in April 2017 that demonstrated bilateral hearing loss for VA purposes. Therefore, the Veteran has a bilateral hearing impairment that meets the criteria for hearing loss disability under 38 C.F.R. § 3.385. With respect to the second element of service connection, the Veteran’s DD-214 shows his military occupational specialty (MOS) was a maintenance data specialist and his personnel file indicates he was also a wrecker operator, light vehicle driver, and vehicle mechanic. These specialties have been determined by the Department of Defense to involve a high probability of hazardous noise exposure. Therefore, the Board concedes the Veteran was exposed to hazardous noise in service. What remains to be shown then, to establish service connection for bilateral hearing loss, is that the Veteran’s disability is related to his service, to include as due to his exposure to noise trauma therein. The Veteran’s service treatment records (STRs) are silent for any complaints, findings, treatment, or diagnoses related to hearing loss. The Veteran’s in-service audiograms demonstrated hearing within normal limits bilaterally, specifically to include after ISO-ANSI conversions were applied to entrance thresholds and compared to separation. See March 2019 VA audiological examination. The Veteran also denied having or ever having had hearing loss in a Report of Medical History that he completed in September 1968 in preparation for his separation from service. Post-service VA treatment records indicate that the Veteran sought treatment for bilateral hearing loss in May 2010. The Veteran has since reported that his first perceived hearing problems began when he was in his 30’s, many years after separation from military service. Based on the foregoing information, service connection for bilateral hearing loss on the basis that such disability became manifest in service and persisted since is not warranted. As there is no competent and credible evidence that sensorineural hearing loss was manifested in the first post-service year, there is also no basis for considering (and applying) the 38 U.S.C. § 1112 chronic disease presumptions (for sensorineural hearing loss as an organic disease of the nervous system). Notably, the Veteran has not asserted that his hearing loss began during service and has continued since service. Service connection for bilateral hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s bilateral hearing loss and an in-service injury, event or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Veteran was afforded VA audiological examinations in May 2011 and September 2014. However, the results from these examinations were invalid for rating purposes. On April 2017 VA audiological examination, the VA examiner found that the Veteran demonstrated hearing loss for VA purposes. The Veteran reported that his first perceived hearing problems began when he was in his 30’s. The VA examiner opined the Veteran’s current bilateral hearing loss was less likely as not caused by or a result of his active military service, as the Veteran’s enlistment and separation examinations showed hearing within normal limits, and the audiometric data did not show acoustic damage. However, the examiner did not indicate whether ISO-ANSI units were normalized, and the matter was remanded for additional medical comment. On March 2019 VA audiological examination, the VA examiner found that the Veteran demonstrated hearing loss for VA purposes. The VA examiner applied the ISO-ANSI conversions to the entrance audiogram and compared the thresholds to the separation audiogram. The VA examiner noted that the Veteran’s hearing remained normal and stable during active duty service, which suggested that no auditory damage was incurred from conceded military noise exposure. The VA examiner noted that the Veteran did not complain of hearing loss at separation, and that he previously reported hearing loss began in his thirties, at least 10 years post-separation. The Veteran reported a 40-year history of civilian occupational noise exposure with occasional hearing protection. The VA examiner further noted that age, smoking, and cardiovascular factors (i.e. blood pressure) have also been linked to an individual’s sensitivity to noise-induced hearing loss, and each of these factors were documented in the Veteran’s claims file. The VA examiner opined that the Veteran’s current bilateral hearing loss was less likely as not caused by or a result of his active military service, given the denial of hearing loss at separation, normal thresholds at separation, history of occupational exposure following military service, and other confounding factors, to include age, smoking, and high blood pressure. The Board finds that the March 2019 audiological evaluation report against the possibility of direct service connection is highly probative evidence against the contention that the Veteran’s current bilateral hearing loss is related to service, given the VA examiner’s review of the claims file, personal interview of the Veteran, physical examination, and discussion of the rationale of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). Significantly, there is no competent (to include medical) evidence to the contrary. Although the Veteran believes his current bilateral hearing loss is related to his in-service noise exposure, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex and outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2019 VA examiner’s opinion. Accordingly, there is no basis to find service connection warranted. The preponderance of the evidence is against the claim, so the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for a sleep condition. The Veteran contends that service connection for a sleep condition is warranted. See October 2017 VA Form 9. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a sleep condition and has not had one at any time during the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records (STRs) are silent for any complaints, findings, treatment, or diagnoses related to any sleep conditions. On September 1968 report of medical history for the separation examination, the Veteran denied frequent trouble sleeping but reported shortness of breath. However, the examiner did not note any shortness of breath or sleeping condition on the separation examination and noted that the Veteran’s lungs and chest were normal. In May 2017, a sleep study was scheduled for the Veteran’s home, and the provisional diagnosis was noted to be obstructive sleep apnea. The Veteran reported loud snoring, apnea, and abnormal breathing. However, the Veteran declined the sleep study, and no confirmed diagnosis of obstructive sleep apnea was established. On March 2019 VA examination, the VA examiner noted that the Veteran did not have a current diagnosis of sleep apnea and there were no noted complaints of signs, symptoms, or treatment of sleep apnea at the time of the examination or when the Veteran served in the military. The Veteran reported that he began having issues with staying asleep, having nightmares, and experiencing head sweats in the early 1970’s. He reported that he still did not sleep all night but took medication for depression, which helped with sleeping. The VA examiner noted that the only symptom of sleep apnea that the Veteran reported was slight snoring. The VA examiner found that the Veteran’s claimed sleep condition was less likely than not incurred in or caused by the military service, as the Veteran’s in-service complaint of shortness of breath was acute. The examiner concluded it would be mere speculation to state that any sleep apnea would be related to the one-time in-service complaint of shortness of breath. The Veteran’s VA treatment records do not show that he has been given a diagnosis of sleep apnea or any other sleep disorder. The Board acknowledges that the Veteran has asserted he has a sleep condition that he contends is associated with his active military service. However, he is not competent, as a layperson, to provide an opinion or evidence as to matters involving medical diagnosis or etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes further that the Veteran is service-connected for posttraumatic stress disorder (PTSD) and that one of his documented symptoms for that disability is sleep disturbances. See, e.g., May 2018 VA PTSD examination report. Therefore, to the extent the Veteran has difficulty sleeping as a result of his psychiatric disability that is, in turn, related to his service, that symptom is accounted for in his PTSD disability rating. In light of the foregoing, it is not shown at any time during the pendency of this appeal that the Veteran has had a diagnosis of a sleep condition. Accordingly, as it is well-established that the existence of a current disability is the cornerstone of any claim for VA disability compensation, the Veteran’s claim for service connection for a sleep condition is denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. Entitlement to service connection for hypertension. The Veteran contends service connection for hypertension is warranted. See October 2017 VA Form 9. The Veteran’s STRs are silent for any complaints, findings, treatment, or diagnoses related to high blood pressure or hypertension. On separation examination in September 1968, the physician noted that the Veteran had a grade II/VI systolic murmur at left lower sternal border. However, his blood pressure was noted to be 110/70. The Veteran’s post-service treatment records indicate he first received treatment for hypertension in approximately June 2010, many years after the Veteran’s separation from service. As such, there is no evidence that the Veteran’s current hypertension manifested in service or to a compensable degree in the first year following his separation from active duty service. Moreover, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from hypertension/high blood pressure continuously since service. 38 C.F.R. § 3.303(b). Consequently, service connection for hypertension on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. The Board acknowledges that service connection for hypertension may still be granted on a direct basis. Nevertheless, there is no evidence that a medical nexus exists between the Veteran’s hypertension and his military service. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). On March 2019 VA examination, the VA examiner noted that the Veteran was diagnosed with benign hypertension in 2010 during an office visit. The VA examiner found that the Veteran’s hypertension was less likely than not incurred in or caused by the Veteran’s military service. The VA examiner noted that there was no complaints, treatment, or diagnosis of hypertension during service. The VA examiner noted that the one-time shortness of breath during service was acute and that it would be mere speculation to state the current hypertension is related to the one-time complaint of shortness of breath during service. The VA examiner noted that the Veteran was diagnosed with chronic obstructive pulmonary disease (COPD) with shortness of breath approximately 40 years after military service. The VA examiner noted that the Veteran had probable exposure to herbicide agents during service but concluded that a nexus had not been established. As the March 2019 VA examiner’s opinion was based on a review of the pertinent medical history and was supported by sound medical rationale, it provides compelling evidence against the Veteran’s claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion”); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board’s statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran’s position). There is no competent (to include medical) evidence to the contrary. Although the Veteran believes his current hypertension is related to his military service, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex and outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2019 VA examiner’s opinion. The preponderance of the evidence is against a finding that the Veteran’s current hypertension was caused by or incurred during his active military service. Therefore, the criteria for service connection for the Veteran’s hypertension have not been met and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.