Citation Nr: 20062012 Decision Date: 09/21/20 Archive Date: 09/21/20 DOCKET NO. 16-19 843 DATE: September 21, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to service connection for a respiratory condition to include asthma, is remanded. FINDINGS OF FACT Hearing loss for VA purposes has not been established at any time during the pendency of the appeal. CONCLUSIONS OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303 (a), 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2003 to May 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously before the Board in February 2019 when they were remanded for additional evidentiary development. 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. § 1131; 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like organic diseases of the nervous system, which includes tinnitus and hearing loss, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran seeks service connection for bilateral hearing loss. The Board first received this claim in July 2012. For the following reason, the Board finds that the Veteran’s claim of entitlement to service connection for bilateral hearing loss must be denied. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) 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 probative evidence of record demonstrates that the Veteran does not have hearing loss for VA purposes at any time during the appeal period. A VA examination conducted in December 2015 resulted in audiometric test scores for the right ear in decibels as follows: 20 at 500 Hertz, 20 at 1000 Hertz, 25 at 2000 Hertz, 10 at 3000 Hertz, and 15 at 4000 Hertz. Speech discrimination for the right ear was 98 percent. Audiometric test scores for the left ear in decibels was as follows: 15 at 500 Hertz, 15 at 1000 Hertz, 15 at 2000 Hertz, 15 at 3000 Hertz, and 20 at 4000 Hertz. Speech discrimination for the left ear was 96 percent. A VA examination conducted in March 2016 resulted in audiometric test scores for the right ear in decibels as follows: 15 at 500 Hertz, 10 at 1000 Hertz, 15 at 2000 Hertz, 15 at 3000 Hertz, and 20 at 4000 Hertz. Speech discrimination for the right ear was 96 percent. Audiometric test scores for the left ear in decibels was as follows: 15 at 500 Hertz, 15 at 1000 Hertz, 15 at 2000 Hertz, 15 at 3000 Hertz, and 25 at 4000 Hertz. Speech discrimination for his left ear was 94 percent. Neither of these examination reports document hearing loss for VA purposes. These are the only test results associated with the claims file which comply with the requirements of 38 C.F.R. § 4.85(a). This regulation requires that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. There is no competent evidence demonstrating that the Veteran's hearing acuity was manifested by a loss of 40 decibels or greater in the 500, 1000, 2000, 3000, or 4000 Hertz ranges nor was there evidence that at least three of the frequencies in these Hertz ranges were 26 decibels or greater. There is no competent evidence demonstrating that speech recognition scores using the Maryland CNC Test were less than 94 percent during the appeal period. To the extent that the Veteran alleges he has hearing loss for VA purposes, the Board finds this allegation to be without probative value. The determination of hearing loss for VA purposes requires specific audiometric test results. A lay person is incapable of determining the extent of loss of hearing acuity in decibels at specific frequencies. To warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disability at some point during a veteran’s appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Board recognizes the Veteran’s sincere belief in his bilateral hearing loss claim and descriptions of his symptoms, the competent evidence of record does not show that the Veteran has a hearing loss disability in either ear for VA purposes at any time during this appeal. In light of the probative evidence of record, the record does not support the claim for service connection for bilateral hearing loss. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, because the preponderance of the evidence is against the claim, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea began during military service, or that the sleep apnea is secondary to medication prescribed for his multiple service-connected condition, including ankle, knee, fibromyalgia, and PTSD. In a May 2016 statement, the Veteran claims his sleep apnea problems are secondary to medication prescribed for his multiple service-connected conditions, including ankle and knee disabilities, fibromyalgia, and PTSD. A December 2015 VA medical opinion determined that the Veteran’s sleep apnea is less likely than not related to his military service. However, the December 2015 VA medical opinion is inadequate as it does not address the Veteran’s secondary service connection argument. Therefore, the Board cannot make a fully informed decision as to sleep apnea because there is no medical opinion that address secondary service connection. Upon remand, an addendum medical opinion must be obtained that addresses all theories of entitlement. 2. Entitlement to service connection for a respiratory condition including asthma. The Veteran contends that his respiratory condition including asthma began during military service, or that the respiratory condition including asthma is secondary to medication prescribed for his multiple service-connected condition, including ankle, knee, fibromyalgia, and PTSD. In a May 2016 statement, the Veteran claims his respiratory problems including asthma are secondary to medication prescribed for his multiple service-connected conditions, including ankle, knee, fibromyalgia, and PTSD. The examiner who conducted a December 2015 VA examination diagnosed the Veteran as having asthma. The examiner, however, gave a negative nexus opinion in regards to whether the disorder was directly due to military service. This December 2015 medical opinion given does not address the secondary service connection contentions raised by the Veteran. The Board cannot make a fully informed decision as to service connection for a respiratory condition including asthma because there is no medical opinion that address secondary service connection. Upon remand, an addendum medical opinion must be obtained that addresses all theories of entitlement. The matters are REMANDED for the following action: 1. Obtain VA and/or identified pertinent private medical treatment records. All reasonable attempts should be made to obtain any identified records. The Veteran should be afforded the opportunity to submit any outstanding private treatment records for the issues on appeal. Instruct the Veteran to provide those records or in the alternative, provide a release so that VA can attempt to obtain those records. 2. Once the above is completed, obtain an addendum medical opinion which addresses the claim for secondary service connection for sleep apnea. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran’s record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea is due to or caused by his service-connected disabilities, including medication used to treat ankle, knee, fibromyalgia, and PTSD? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disabilities, including medication used to treat his ankle, knee, fibromyalgia, and PTSD? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and the other lay witnesses, the examiner should indicate this in the examination report and provide a rationale for that determination. Please explain in detail any opinion provided and the supporting rationale. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Once the development in paragraph one above is completed, obtain an addendum medical opinion which addresses the claim for secondary service connection for a respiratory condition to include asthma. The decision for an in-person examination of the Veteran for sleep apnea is left to the discretion of the examiner. The Veteran’s record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: (a.) Is it at least as likely as not (a 50 percent or greater probability) that any respiratory disorder present during the appeal period to include asthma is due to or caused by his service-connected disabilities, including medication used to treat ankle, knee, fibromyalgia, and PTSD? (b.) Is it at least as likely as not (a 50 percent or greater probability) that any respiratory disorder present during the appeal period to include asthma has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disabilities, including medication used to treat his ankle, knee, fibromyalgia, and PTSD? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and the other lay witnesses, the examiner should indicate this in the examination report and provide a rationale for that determination. Please explain in detail any opinion provided and the supporting rationale. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.