Citation Nr: 21063587 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 20-02 124 DATE: October 14, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Entitlement to service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's bilateral hearing loss has been manifested by, at worst, Level II hearing acuity in the right ear and Level III hearing acuity in the left ear. 2. The probative evidence of record does not demonstrate that the Veteran's obstructive sleep apnea is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from July 1961 to July 1965, as well as additional service in the U.S. Naval Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in October 2020. A transcript of this hearing has been associated with the claims file. As a preliminary matter, these claims were previously before the Board in March 2021, at which time they were remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the March 2021 remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. The Veteran contends that he should be awarded an initial compensable disability rating for his service-connected bilateral hearing loss from December 1, 2016, the date of receipt for the claim for service connection. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ratings of hearing loss range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established 11 auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Applying the rating criteria to the facts of this case, the Board finds that the criteria for an initial compensable rating have not been met. The evidence establishes that throughout the appeal period, the Veteran's service-connected bilateral hearing loss was manifested by Level II hearing acuity in the right ear and Level III hearing acuity in the left ear, at its worst. First, the Veteran submitted a private audiological report in August 2017 in conjunction with his claim for service connection. However, the August 2017 private audiological evaluations are not sufficient for VA rating purposes. Pursuant to 38 C.F.R. § 4.85(a), 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. The August 2017 private audiograms contain a speech discrimination section but do not specify which word lists have been used during the evaluation. As stated above, VA regulations require that the use of a Maryland CNC word list for speech discrimination testing. The report does not show an exceptional pattern of hearing loss such that hearing loss would be permitted to be rated without the CNC test. Therefore, the results of the August 2017 private audiological evaluations cannot be used for VA rating purposes. Turning to the other evidence of record, the Veteran was first afforded a VA examination September 2017. The Veteran's pure tone thresholds for the right ear were 20, 45, 60, and 55 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 45. Pure tone thresholds for the left ear were 20, 40, 45, and 50 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 39. Speech discrimination scores, using the Maryland CNC word list, were 96 percent for both the right and left ears. These audiological findings show Level I hearing acuity in the right ear, as well as Level I hearing acuity in the left ear under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, the September 2017 VA audiogram results correspond to a 0 percent, or non-compensable, disability rating. See 38 C.F.R. § 4.85. Most recently, the Veteran was afforded another VA examination in August 2021, after he testified at the October 2020 Board hearing that his bilateral hearing loss had worsened. During this examination, the Veteran's pure tone thresholds for the right ear were 25, 50, 60, and 60 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 49. Pure tone thresholds for the left ear were 25, 40, 50, and 55 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 43. Speech discrimination scores, again using the Maryland CNC word list, were 88 percent for the right ear and 80 percent for the left ear. These audiological findings continue to show Level II hearing acuity in the right ear and Level III hearing acuity in the left ear under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, the August 2021 VA audiogram results again correspond to a non-compensable disability rating. 38 C.F.R. § 4.85. The Board has considered the Veteran's symptomology and functional impact. The Veteran's complaints of increased hearing difficulty have been considered under the numerical criteria set forth in the rating schedule, which take into consideration such impacts. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board in no way discounts the difficulties that the Veteran experiences because of his bilateral hearing loss. However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to numeric designation assigned after audiometry results are obtained. The hearing loss must become more severe before it is considered a compensable disability for VA purposes. The Board must base its determination on the results of the pertinent audiological evaluations of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record has presented no basis for the initial assignment of a compensable disability rating for the Veteran's service-connected bilateral hearing loss. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for obstructive sleep apnea is denied. The Veteran contends that he has a diagnosis of obstructive sleep apnea that is etiologically related to his service. Specifically, the Veteran asserts that during his service in the U.S. Navy Reserves, he was assigned to a field unit in a remote location which used mobile generators 24 hours per day near the servicemembers tents, which resulted in loud noises disturbing his sleep. The Veteran contends this initial sleep disturbance played a "large role" in the development of his obstructive sleep apnea. See January 9, 2017 correspondence. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). "Active military, naval, or air service" includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. See 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C. § 101 (24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. See VAOPGCPREC 86-90. The question for the Board is whether the Veteran has a current disability that began during active 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 obstructive sleep apnea, and while the Veteran is competent to report symptoms of sleep disturbance, such as irregular sleep and loud snoring, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of obstructive sleep apnea began during service or is otherwise related to active service. Regarding the first element of service connection, a current disability, private treatment records show that the Veteran was diagnosed with severe obstructive sleep apnea in December 2012 after a sleep study was performed. See July 20, 2015 private treatment record. As such, the first element of service connection is met. Regarding the second element of service connection, an in-service event or incurrence, there is no diagnosis of sleep apnea noted in the Veteran's service treatment records (STRs), nor treatment for symptoms of such. Notably, the Veteran did complain of difficulty sleeping on at least one occasion throughout the record. Furthermore, the Veteran has testified credibly to having sleep disturbances, including years of irregular sleep and snoring. Further, the Veteran submitted buddy statements indicating that during this period of his Reserves service, "sleep deprivation is the norm." See July 1, 2017 buddy lay statement. He is competent to describe his symptoms, and the evidence does not contradict him in a way to make his testimony not credible. Since the Veteran was on some periods of active duty for training at the time of his assertions that his sleep disturbances began, the Board will resolve all reasonable doubt in the Veteran's favor and find that the second element of service connection is also met insofar as he had alleged symptoms that disturbed his sleep during active and inactive service. The question then becomes whether there is probative evidence that the currently diagnosed obstructive sleep apnea is related to any such in-service symptoms. The Veteran was afforded a VA examination in August 2021 to obtain a medical opinion regarding the etiology of the Veteran's obstructive sleep apnea. The VA examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner reasoned that there was likely no nexus between the obstructive sleep apnea and the Veteran's military service for multiple reasons. The VA examiner noted that the Veteran was first diagnosed with obstructive sleep apnea in December 2012, when the Veteran was approximately 69 years old. The VA examiner acknowledged that the Veteran began complaining of sleep disturbances and other sleep related symptoms beginning around 2005. However, the VA examiner stated " [c]laimant is presuming that poor sleep from loud noises is the same as poor sleep from sleep apnea. Poor sleep from loud noises has nothing to do with sleep apnea. On the other hand, sleep apnea causes poor sleep due to upper airway obstruction of air and transient hypoxia that causes the body to wake up to breathe (a patient most of the time does not recognize that the body is periodically waking to get air, however this leads to daytime sleepiness). The two methodologies are not related other than they both result in poor sleep. Sleep apnea can only be diagnosed by a sleep study as specific diagnostic criteria needs to be met. It cannot be diagnosed based on symptoms. Symptoms can lead a clinician to pursue a sleep study, but symptoms itself remain only a suspicion of sleep apnea. Furthermore, it is medically speculative to retrospectively point to symptoms to speculate the start of sleep apnea... Three clear risk factors the Claimant has for the development of sleep apnea include male gender, obesity, and older age. It is less likely than not that his sleep apnea had its onset during military service or is otherwise related to military service." The Board gives the August 2021 VA examination report and opinion great probative weight as it is based on a review of the medical record as a whole and provides clear support and rationale for its conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent to report having experienced symptoms of sleep disturbance, and snoring since service, he is not competent to determine that these symptoms were manifestations of obstructive sleep apnea. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing, to include polysomnography. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran believes that his obstructive sleep apnea is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue because it is medically complex in nature, as explained above. See id.; see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence, namely the August 2021 VA opinion, that indicates that the Veteran's obstructive sleep apnea was only recently diagnosed and more likely related to his other risk factors, such as his age, weight, and gender. In view of the above, the weight of the evidence is against the claim for service connection for obstructive sleep apnea. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.