Citation Nr: 21003885 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-20 050 DATE: January 25, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for a sleep disorder, to include sleep apnea, is denied. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss to an extent recognized for VA disability purposes. 2. It has not been shown, by credible, competent evidence, that the Veteran has a sleep disorder related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to March 1980. In June 2019, the Veteran had a hearing before the undersigned; a transcript is of record. This case was remanded in December 2019 for examinations and opinions. Service Connection General laws and regulations that pertain to 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 service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). 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 claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303 (b), service connection may be awarded for a “chronic” condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309 (a) (such as sensorineural hearing loss) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran’s present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309 (a)). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the e-file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The record contains service treatment records (STRs); VA outpatient and examination reports to include opinions; as well as testimony and written statements of the Veteran. 1. BILATERAL HEARING LOSS The Veteran asserts that he has bilateral hearing loss due to his military service. In regard to the first element, the Veteran does not have a current hearing loss disability for VA purposes in either ear. The audiogram from the July 2015 VA examination revealed pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz of 15, 20, 15, 20, and 30 decibels, respectively and in the left ear 15, 15, 15, 25, and 30, respectively. Speech recognition was 96 percent in the right ear and 100 percent in the left ear. The audiogram from the February 2020 VA examination revealed pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz of 20, 20, 20, 20, and 30 decibels, respectively and in the left ear 20,25, 20, 35, and 35, respectively. Speech recognition was 100 percent in the right ear and 96 percent in the left ear. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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 findings reported at the VA examinations do not reflect the presence of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. As there is no other audiometric testing during the appeal period that reveals otherwise, there is no competent evidence that demonstrates bilateral hearing loss for VA purposes, and the claim for bilateral hearing loss is denied on this basis alone. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). To the extent the Veteran asserts that he has a bilateral hearing loss disability, his opinion is not competent, as the VA has specifically determined audiometric findings that represent hearing loss for VA purposes. In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal and service connection for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. SLEEP DISORDER /SLEEP APNEA The Veteran contends that his exposure to asbestos during military service led to the development of sleep apnea. In regard to the first element of the Holton analysis, a current disability, VA outpatient records dated since July 2015 show diagnoses of sleep apnea. Concerning the second element, evidence of incurrence or aggravation of a disease or injury in service, at VA contract examination, the Veteran reports that he was exposed to asbestos while abord the USS Barry. The military service records show that he served aboard USS Barry. Significantly, however, the Veteran is not shown to have a diagnosis of an asbestos related disease. He does, however, have sleep apnea, which was first shown approximately 35 years following his discharge from service. There is no medical evidence indicating that the sleep apnea is, or may be, related to his service. Whether or not sleep apnea may be related to service/events or environmental exposures therein is a medical question that is beyond the scope of lay observation or common knowledge. It requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is a layperson and has not presented any medical opinion or treatise evidence supporting that a sleep disability is/may be related to his service. His own opinion in the matter has no probative value. The only medical opinion in the record that addresses the matter is against the Veteran’s claim. In January 2020, the examiner specifically found that the Veteran’s chest X-ray was negative for any type of asbestos involvement. Further, his sleep apnea was less likely than not to be due to military service. The opinion reflects familiarity with the record/the Veteran’s medical history and includes rationale that cites to supporting factual data. It is probative evidence in this matter, and persuasive. Therefore, the preponderance of the evidence is against the claim of service connection for sleep apnea. Accordingly, the appeal in this matter must be denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.D. Jackson, 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.