Citation Nr: 21065604 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-28 864A DATE: October 26, 2021 ORDER Service connection for depressive disorder is granted. Service connection for sleep apnea as secondary depressive disorder is granted. Service connection for degenerative arthritis of the lumbar spine is denied. Service connection for arthritis of the knees, ankles, hips, and fingers is denied. Service connection for Hepatitis C is denied. Service connection for a heart disability is denied. A compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran has been diagnosed with depressive disorder and there is an opinion of record by a mental health professional finding that this condition more likely than not began in service. 2. A competent medical opinion has found that the Veteran's sleep apnea has been aggravated by his depressive disorder. 3. The most probative evidence of record weighs against a conclusion that degenerative arthritis of the lumbar spine; arthritis of the knees, ankles, hips, and fingers; Hepatitis C, or a heart disability were incurred in service; degenerative arthritis of lumbar spine; arthritis of the knees, ankles, hips, and fingers; or a heart disability were not shown within one year of separation from service. 4. Hearing acuity is to Level I in the right ear and, at worst, Level IV in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). 2. The criteria for service connection for sleep apnea as secondary to depressive disorder are met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2021). 3. The criteria for service connection for degenerative arthritis of the lumbar spine; arthritis of the knees, ankles, hips, and fingers; or a heart disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 4. The criteria for service connection for Hepatitis C are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). 5. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86 DC 6100 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1978. This case was remanded by the Board of Veterans' Appeals (Board) in May 2020 and is now ready for appellate review. I. Service Connection Claims A. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis and cardiovascular disorders, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. § §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309 (a), such as arthritis and cardiovascular disorders. A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). B. Analysis 1. Depressive Disorder/Sleep Apnea Based on a review of the claims fileto include statements from the Veteran's relatives as to personality changes and psychiatric problems they observed the Veteran having immediately after separation from service that have continued to the present timea private psychologist rendered the following opinion in June 2015 as follows: Due to the complex overlap of endorsed symptoms[,] it is inconceivable to differentiate specific causation for disability. Therefore, it should be noted that the disease pattern cannot be attributed to one particular event or medical condition; rather, all conditions may indeed contribute to the overall decompensation and disability of this Veteran. It is the belief of this examiner, based on interview and [review of the] C[claims]-File that [the Veteran's] depressive disorder more likely than not began in military service, has continued uninterrupted to the present and is aggravated by his [service connected] tinnitus and hearing loss. As the above positive opinion is not contradicted by a negative opinion, it is sufficient to warrant a grant of service connection for depressive disorder. With respect to sleep apnea, a September 2015 statement by a private physician concluded that the Veteran's depressive disorder "aided in the development of and permanently aggravate[d] his OSA [obstructive sleep apnea]. Again, as this positive opinion is not contradicted by a negative opinion, it is sufficient to warrant a grant of service connection for sleep apnea as secondary to depressive disorder. 2. Degenerative arthritis of the Lumbar Spine; Arthritis of the Knees, Ankles, Hips and Fingers; Hepatitis C; Heart Disability The service treatment reports [STRs] reflect treatment in December 1974 for back pain after the Veteran lifted a wall locker. The back pain was accompanied by urinary frequency and the impression was possible urinary tract infection versus muscle strain. Follow up treatment revealed no back pain and an impression of possible urinary tract infection. The STRs also reflect treatment for a twisting injury to the right ankle in February 1978. An x-ray of the right ankle conducted at that time showed no bone or joint abnormalities. The remaining STRs, to include the reports from the May 1978 separation examination, are silent for a lumbar spine disability; knee, ankle, hip, or finger disability; Hepatitis C or indicia thereof; or a heart disability. After service, an October 2014 VA examination, which noted the in-service treatment for the right ankle, found that it was less likely as not that right ankle arthritis was incurred in service. The rationale for the opinion was as follows: Although there is record of treatment in the service for a right ankle condition with normal radiographic findings, no permanent residual or chronic disability subject to service connection is shown. The separation physical shows that issue resolved to full functional capacity as evidence[d] by a normal joint exam on the separation exanimation. No permanent residual or chronic disability subject to service connection is shown by medical evidence [in the] one year following service. The right ankle exam and xrays completed in conjunction with the [VA] exam[] was normal. The conclusion is that the right ankle condition in [] service was acute and transitory and not related to the present compl[ai]nt. Based on the medical evidence, there is no evidence of a right ankle condition that was incurred in or caused by the right ankle sprain in the military. Another opinion was rendered with respect to degenerative arthritis of the lumbar spine in October 2014 as follows: There is documentation in the Veteran's STR[]s to substantiate the [V]eteran was seen on 2-18-1974 for a backache in the CVA [costovertebral angle] vers[us] a urinary tract infection. Pain in the CVA area can be contributed to a urinary tract infection [UTI]. He was treated for a UTI and by 12-20-1974 follow up visit, the back pain was gone. The conclusion is that the backache was related to a UTI. The separation physical is silent for a back condition. No permanent residual or chronic disability subject to service connection is shown by medical evidence one year following service. There is medical evidence of degenerative change of the lumbar spine and discs in 2003, twenty-five years after discharge. The degenerative changes are related to the normal aging process and may also [be] due to the excessive use required in his physically demanding occupation of 29 years as an industrial electrician. Based on the medical evidence, the degenerative changes in the lumbar spine and lumbar discs [were] not incurred in or caused by the backache experienced in the military. The above opinions are not contradicted by any positive opinions, and the undersigned otherwise finds the above opinions to be definitive as to the claims for service connection for degenerative arthritis of the lumbar spine and arthritis of the right ankle as they are documented to have been based on a thorough review of the clinical history and are supported by detailed rationale. There being no indication in the record, both during service or thereafter, that the Veteran has arthritis of the knees, left ankle, hips, or fingers; Hepatitis C, or a heart disability that is the result of service, VA medical examinations or opinions addressing the claims for service connection for these disabilities are not necessary to fulfill the duty to assist. To the extent the assertions of the Veteran and his attorney are advanced in an attempt to establish that he has degenerative arthritis of the lumbar spine; arthritis of the knees, ankles, hips, and fingers; Hepatitis C; or a heart disability a psychiatric disability as a result of service, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his attorney are shown to have the appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. While the Veteran is competent to describe any lay observable symptoms associated with degenerative arthritis of the lumbar spine; arthritis of the knees, ankles, hips and fingers; Hepatitis C; and a heart disability since service, the undersigned finds the silent separation examination for these conditions; with respect to a back or right ankle disability, the negative October 2014 opinions set forth above; and the lack of any competent evidence linking these conditions to service to be more probative than any lay assertions made in connection with the claims for service connection for degenerative arthritis of the lumbar spine; arthritis of the knees, ankles, hips and fingers; Hepatitis C or a heart disability and that these facts weigh against a finding of continuity of relevant symptoms associated with these conditions since service. Finally, as degenerative arthritis of the lumbar spine; arthritis of the knees, ankles, hips, and fingers; or a heart disability was not shown to a compensable degree within one year of separation from service, service connection for such on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Given all of the above, the Board finds that the preponderance of the evidence is against the claims for service connection for degenerative arthritis of the lumbar spine; arthritis of the knees, ankles, hips, and fingers; Hepatitis C; and a heart disability. As such, these claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. II. Increased Rating for Bilateral Hearing Loss A. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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. Lindemann v. Principi, 3 Vet. App. 345 (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. Such exceptional patterns have not been demonstrated or claimed. B. Analysis The audiometric findings determinative of the rating to be assigned for the Veteran's service-connected bilateral hearing loss include results from VA audiometric testing in October 2014 which showed average puretone threshold deficits of 46 decibels in the right ear and 50 decibels in the left ear. When considered with speech recognition ability of 94 percent in the right ear and 88 percent in the left ear shown at this examination, such readings with application of Table VI of 38 C.F.R. § 4.85 reflect Level I hearing in the right ear and Level II hearing in the left ear, warranting a compensable rating under Table VII. The October 2014 examiner noted that the Veteran stated his hearing loss impacted the ordinary conditions of daily life to include his ability to work to the extent that he cannot hear speech very well, cannot hear certain frequencies very well, and cannot hear emergency vehicles very well. The most recent audiometric findings obtained following the May 2020 Board from audiometric testing conducted in November 2020 showed average puretone threshold deficits of 50 decibels in the right ear and 69 decibels in the left ear. When considered with speech recognition ability of 100 percent in the right ear and 76 percent in the left ear shown at this examination, such readings with application of Table VI of 38 C.F.R. § 4.85 reflect Level I hearing in the right ear and Level IV hearing in the left ear, warranting a compensable rating under Table VII. The October 2014 examiner noted that the Veteran stated his hearing loss impacted the ordinary conditions of daily life to include his ability to work to the extent that he has difficulty hearing high pitch noises and has to turn the volume of his television to a very high level. In short, given the audiometric findings listed above and the manner in which ratings for hearing loss disability are determined, a compensable rating for bilateral hearing loss cannot be assigned. Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). In making this determination, the Board observes that it has carefully considered the Veteran's contentions with respect to the nature of his service-connected bilateral hearing loss, to include difficulty hearing speech and television broadcasts. However, after considering such contentions as to the functional effects of the Veteran's hearing loss disability on his daily lifewith the VA audiology examinations specifically considering such effectsthe Board finds that a compensable rating for bilateral hearing loss cannot be assigned. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); Lendenmann, supra. For the foregoing reasons, the Board finds that there is no other basis for a compensable rating for the Veteran's bilateral hearing loss. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, given the mechanical nature of deriving schedular ratings for hearing loss, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.