Citation Nr: 21004260 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 10-36 899 DATE: January 26, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The weight of the competent and probative evidence is against finding that the Veteran’s current bilateral hearing loss for VA purposes had its onset during or is otherwise related to the Veteran’s period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from February 1967 to January 1969. He received the Combat Infantryman Badge. These matters are before the Board of Veterans’ Appeals (Board) on appeal from April 2009 and September 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified before the undersigned via videoconference hearing; a transcript is of record. Subsequently, these matters were remanded Board in June 2020 for additional development, to include VA examinations. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was scheduled for and underwent examinations for his remanded claims. Additionally, in an October 2020 rating decision, the RO granted the Veteran’s claim for service connection for hypertension. As this grant represents a full grant of the benefit sought, this issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). In a claim of service connection for impaired hearing, demonstration of the first Shedden element, that is the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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 Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009).   When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Entitlement to service connection for bilateral hearing loss. The Veteran asserts service connection for bilateral hearing loss to include as due to in-service noise exposure. His representative contends that even though his in-service examinations did not reflect a significant threshold shift, that he experienced delayed onset of a significant threshold shift due to service. The question for the Board is whether the Veteran has a bilateral hearing loss disability for VA purposes 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 while the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, the preponderance of the evidence is against finding the disability is related to service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303. The Veteran has a current diagnosis of bilateral hearing loss for VA purposes as reported at the July 2020 examination. As such, the first element of service connection is met. The Board has previously found the Veteran had noise exposure during active duty. Additionally, the Veteran via his representative, asserted noise exposure during service to include small arms, mortars, rockets and artillery at the Board hearing. It was asserted he sustained injuries to his hearing during combat. While the Veteran is competent and credible to describe his in-service experiences, he is not competent to determine that noise exposure in service caused his current bilateral hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Concerning the March 2009 examination, the Board previously found it inadequate for relying on the entrance and separation examinations. The July 2016 opinion was also insufficient as the examiner overly relied on the Veteran’s hearing loss not occurring immediately in service. The Veteran underwent an examination in July 2020. The examiner provided a negative nexus opinion. In support, the examiner explained that the threshold changes from entrance to separation were zero dB at 500, 1000, 2000 Hz, and -5 dB at 4000 Hz. The Veteran’s threshold shifts from entrance to exit examinations were not consistent with auditory damage. The examiner acknowledged the Veteran’s noise exposure. However, the examiner also found that while the Veteran worked at General Motors (GM) with hearing protection, it was a potential contributor to his current hearing loss. A negative nexus opinion was also provided in October 2020. The examiner reviewed the Veteran’s service treatment records in addition to audiological examinations. The examiner reported that there was no change in hearing from his entrance and separation examination, he had a high probability of noise exposure, and worked at GM after service. The examiner stated there was no continuity of symptomatology as the Veteran did not have an examination within one year after service and there was no indication of hearing difficulties during this period on appeal. The examiner also explained that noise induced hearing loss is typically an immediate change and there are accompanying threshold shifts until the shifts become permanent. The evidence of record did not show temporary threshold shifts during service or permanent threshold shifts until after he worked for GM. The examiner acknowledged research that shows early noise exposure can contribute to age-related hearing loss later, but that the study was conducted on mice. The evidence did not show shifts when he was exposed to noise in service and later onset hearing loss was not supported in medical literature when there is no evidence of acoustic trauma (hearing changes) in between tests. The examiner acknowledged that the Veteran wore hearing protection at GM; however, it was more likely that his hearing loss was related to working at GM rather than from service as his hearing was normal at separation, and he did not have testing for 40 years after service. The Board finds the 2020 negative nexus opinions to have great probative value. In this regard, the examiners explained that there was not a threshold shift during the Veteran’s service which typically occurs after acoustic trauma. Additionally, while the examiners acknowledged the Veteran’s use of hearing protection while he was employed at GM, his delay of hearing problems and leaving service suggested industrial noise exposure was the cause of his hearing loss. The October 2020 examiner also addressed early noise exposure with age related hearing loss, but explained that it was centered on mice. As the examiner’s considered the Veteran’s military and post-service noise exposure histories, available testing data, and provided a reasoned rationale, the Board finds these opinions to have great probative value. The Veteran submitted a positive private opinion from August 2013. However, the Board finds this opinion to have little probative value as the physician states his hearing loss is probably related to military noise exposure. In this regard, the opinion is conclusory, does not account for alternative causes (2020 opinions reporting industrial noise exposure), and does not discuss the Veteran’s in-service hearing testing results. After review of the competent and probative evidence, the Board finds the preponderance of the evidence is against service connection for bilateral hearing loss. The Board acknowledges the Veteran’s contentions that he believes his in-service acoustic trauma is the cause of his hearing loss, but he is not competent to provide a nexus statement in a matter involving a disease process like hearing loss. As such, statements in this regard lack weight. The Board also acknowledges the positive private opinion. However, as noted above, it is completely conclusory, and the 2020 opinions have been found to have greater probative weight. Moreover, there is no indication from the claims file, nor has the Veteran asserted, that his disabilities began during service, or manifested within one year after exiting service and continued. In this regard, the Veteran reported tinnitus (service-connected at 10 percent) began during service and continued since that time at the 2009 examination. However, he did not contend that his hearing loss also began during service or soon after he exited service. The Board finds such as a factor that tends to weight against the claim as the statement was made in the context of another audiological disability. In sum, the preponderance of the evidence is against a finding that the Veteran’s current bilateral hearing loss disability for VA purposes is related to his active military service. The competent and probative evidence weighs against a nexus to service. As such, reasonable doubt does not arise, and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea is remanded. A negative nexus opinion for the Veteran’s OSA was provided in September 2020. The examiner stated that while there are correlations between posttraumatic stress disorder and OSA, the studies do not show a direct connection. The examiner cited a Mayo Clinic website (reporting the symptoms and causes of OSA) which identified risk factors. An additional nexus opinion was provided in October 2020. The examiner found that it was less likely than not incurred in or caused by service as he did not report symptoms until 1990. The examiner also provided a negative secondary nexus opinion. The secondary nexus opinion concerning PTSD was the same as September 2020. Concerning hypertension/tinnitus, the examiner explained that although some studies support a co-existence between hypertension/tinnitus and sleep apnea, they do not cause it. OSA is caused by the throat muscles relaxing. As such, it was not aggravated beyond its natural progression by PTSD, hypertension, and/or tinnitus. The Veteran’s representative has asserted that newer medical articles related to PTSD and OSA show a relationship since the most recent examinations. See 1/13/2021, Appellate Brief, at p. 2-3. As such, the Board finds that a new addendum or examination is warranted to address these articles recently added to the claims file.   This matter is REMANDED for the following actions: 1. Contact the Veteran’s representative and request they provide the full text of the article cited on page 2 of the January 2021 appellate brief titled Obstructive Sleep Apnea in Posttraumatic Stress Disorder Comorbid With Mood Disorder: Significantly Higher Incidence Than in Either Diagnosis Alone as the provided link takes the reader only to an abstract, and not full text, of the article. 2. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 3. After completing the development requested above in directives #1 and 2, refer the Veteran’s file with a copy of this remand to an examiner for an opinion regarding the etiology of the Veteran’s OSA. The examiner is to review the Veteran’s records and address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that his OSA is related to an in-service injury, event, or disease? (b.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability is either 1) proximately due to OR 2) aggravated by the Veteran’s service-connected disabilities (PTSD, tinnitus, and/or hypertension)?   **The examiner must review and discuss the medical articles the Veteran’s representative has submitted. See 1/13/2021, Appellate Brief, p. 2, 3. (citing two studies discussing OSA and neuropsychiatry). ** The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. (CONTINUED ON THE NEXT PAGE)   A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, 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.