Citation Nr: 21065426 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-60 604 DATE: October 26, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to an initial 30 percent rating for Meniere's disease prior to August 16, 2021 is granted. FINDINGS OF FACT 1. A preponderance of the evidence indicates that obstructive sleep apnea (OSA) was not incurred in service and is not related to service-connected disability. 2. The evidence is in a state of relative equipoise regarding whether, prior to August 16, 2021, Meniere's disease caused hearing loss and tinnitus with vertigo. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to an initial 30 percent rating for Meniere's disease prior to August 16, 2021 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.87. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 until November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the electronic claims file and has been reviewed. In September 2019, the Board remanded the claim on appeal for additional development. The case is again before the Board for appellate review. Service Connection The Veteran claims that he incurred OSA during service and, alternatively, that he developed the disorder as the result of service-connected sinus and psychiatric disabilities. Relevant legal authority Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a disability, a Veteran must show: (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 active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The evidence addressing the Veteran's direct and secondary service connection claims consists of the Veteran's lay assertions, service treatment records (STRs), private and VA treatment records, medical evidence from the Social Security Administration (SSA), and April 2016 and July 2021 VA compensation examination reports. This evidence documents that the Veteran has OSA. The diagnosis is noted most recently in the July 2021 VA report. A preponderance of the evidence indicates, however, that the disorder is not related to service or to service-connected disability. With regard to direct service connection, the STRs are negative for a sleep disorder as are an August 1969 report of medical history and a November 1970 discharge report of medical examination. Further, the record contains no medical evidence addressing a sleep problem in the years after service. Indeed, the earliest evidence of record addressing a sleep problem is found in private medical evidence dated in June 2008 indicating that the Veteran had OSA. This evidence is dated over 37 years following discharge from service. Thus, the record indicates that for many years following service the Veteran did not have a chronic sleep apnea disorder. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The record indicates that the Veteran did not have the characteristic manifestations following service sufficient to identify a chronic disease entity involving sleep apnea. See 38 C.F.R. § 3.303. Moreover, in the only medical opinion of record addressing direct service connection, the July 2021 VA examiner found OSA likely unrelated to service. In support of the opinion, the examiner noted the Veteran's lay assertions regarding symptoms since service, but also noted the lack of any evidence of the disorder during service and in the decades after service. This examiner also addressed the secondary service connection theory of entitlement, that service-connected sinus and psychiatric problems relate to OSA. The examiner stated that OSA was a separate disorder from the others, a "mechanical problem" not caused by sinus or psychiatric problems, and not aggravated by such problems. It is complete or partial upper airway obstruction during sleep. During sleep the tongue falls back against the soft palate and the soft palate and uvula fall back against the back of the throat, effectively closing the airway. In turn, when the sleeper expands the chest to inhale, no air enters the lungs. The Board finds the July 2021 opinion probative because it is explained with citation to facts in the record, is based on a review of the claims file, and is based on an examination and interview of the Veteran. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The Board finds another opinion addressing the claim, in the April 2016 VA report, less probative. The opinion found that sinus disability did not cause OSA. As indicated in the Board's remand, that opinion is inadequate and will not be relied on here. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In assessing the claim, the Board has considered the lay statements of record. Lay statements may be probative because laypersons are competent to describe observable symptomatology such as snoring and sleep disturbances. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, lay persons are not competent to determine matters such as diagnosis and etiology. The questions of whether the Veteran incurred OSA during service, or developed the disorder from sinus or psychiatric disability, are complex medical issues involving an internal pathology related to the tongue, throat, lungs, soft palate, and uvula while sleeping. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). For this reason, the weight of the July 2021 VA opinion preponderates against the lay evidence here. Indeed, the VA opinion is more credible with regard to the question of whether the "mechanical problem" of OSA was incurred in service or resulted from other disorders. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). Based on the foregoing evidence, the Board finds that the evidence of record preponderates against the claim of entitlement to service connection for OSA. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased rating On July 16, 2015, the Veteran claimed entitlement to service connection for Meniere's disease. In the November 2015 rating decision on appeal, the RO granted the claim and assigned a 0 percent rating effective the date of claim. Later in the appeal period, in an August 2021 rating decision, the RO increased the disability rating to 100 percent, effective August 16, 2021. The Veteran continues to seek a compensable rating prior to this increase in rating. Relevant legal authority Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Meniere's disease is rated under DC 6205 of 38 C.F.R. § 4.87. Thereunder, ratings of 30, 60, and 100 percent are authorized for various levels of disability. A 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. A 100 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. This provision also states that Meniere's disease should be evaluated either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. The provision forbids combining an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under DC 6205. 38 C.F.R. § 4.87. Peripheral vestibular disorders are rated under DC 6204. A 10 percent rating is warranted for occasional dizziness while a 30 percent rating is warranted for dizziness and occasional staggering. The provision states that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. 38 C.F.R. § 4.87. The Veteran has been service connected for tinnitus with a 10 percent rating since June 2011 and has been service connected for hearing loss since June 2011 with a 10 percent rating from December 10, 2015. He is not service connected for a peripheral vestibular disorder and has not been diagnosed with such a disorder. Symptomatology attributed to a nonservice-connected disability cannot be differentiated from symptomatology attributed to a service-connected disability unless medical evidence does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In the absence of such medical evidence, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evidence and analysis The evidence in this matter consists of lay assertions from the Veteran, VA and private treatment records, evidence from SSA, and a November 2015 VA compensation examination report. This evidence supports the assignment of an initial 30 percent disability rating under DC 6205 for vertigo, hearing loss, and tinnitus. The medical and lay evidence dated since the July 2015 claim approximates the criteria for the higher rating. In his original claim, the Veteran noted experiencing dizziness related to tinnitus and hearing difficulty. In lay statements dated throughout the appeal period he has noted dizziness. In VA treatment records dated throughout the appeal period, his complaints of dizziness and vertigo are noted (e.g., July 2018 record noting "documented history of dizziness that has not cleared up") even though certain other VA treatment records indicate he has denied such symptoms. And the November 2015 VA report notes complaints of dizziness. In general, his observable complaints of vertigo have been consistent during the appeal period. As such, the record establishes the symptom of vertigo throughout the appeal period. See Jandreau and Smith, both supra. Thus, while the record does not establish prior to August 2021 the diagnosis of a peripheral vestibular disorder, it repeatedly evidences the Veteran's complaints of vertigo, in addition to the service-connected hearing loss and tinnitus, as related to Meniere's. This evidence approximates the assignment of a 30 percent rating under DC 6205. The Veteran has been separately rated for hearing loss under DC 6100 and tinnitus under DC 6260. See 38 C.F.R. §§ 4.86-87. These ratings may not be combined with a rating under DC 6205. Nevertheless, inasmuch as the 30 percent rating under DC 6205 will exceed the separate 10 percent ratings for hearing loss and tinnitus, the 30 percent rating is warranted for the vertigo, hearing loss, and tinnitus under DC 6205. The next-highest rating of 60 percent is unwarranted, however. There is no medical evidence indicating that the Veteran experienced a cerebellar gait prior to August 2021. The VA treatment records do note occasional complaints of gait problems, but the records indicate that the problems have been related to service-connected disabilities in the legs (e.g., peripheral neuropathy) rather than Meniere's disease. In sum, a medical professional did not diagnose a peripheral vestibular disorder prior to August 2021. As such, separate ratings for hearing loss, tinnitus, and vestibular disorders would not be warranted here under DCs 6100, 6260, and 6204, respectively. Nevertheless, the evidence is clear that the Veteran has consistently experienced vertigo during the appeal period. That, combined with the hearing loss and tinnitus, supports the 30 percent rating under DC 6205, rather than the smaller ratings of 10 percent under DCs 6100 and 6260 of 38 C.F.R. §§ 4.86-87. Based on the foregoing, the Board cannot find that a preponderance of the evidence is against the claim of entitlement to a higher initial disability rating. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and assign the higher initial rating of 30 percent prior to August 16, 2021. A preponderance of the evidence is against the assignment of a 60 percent rating, however. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.