Citation Nr: 21071872 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-09 417 DATE: December 1, 2021 ORDER Service connection for obstructive sleep apnea is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease or caused or aggravated by service-connected tinnitus. 2. Bilateral hearing loss was not manifested during active service, a significant upward threshold shift in hearing acuity did not occur in service, sensorineural hearing loss was not shown during the first year after separation from active duty, and the most probative evidence indicates that the Veteran's current bilateral hearing loss is not otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.310. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to August 1972. He was also a member of the Air Force Reserve from June 1970 to June 1995, during which he performed other periods of active duty for training and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) from a February 2017 rating decision. In May 2019, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection, there must be the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active military service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred or aggravated in the line of duty, or a period of inactive duty for training (INACDUTRA) during which the veteran was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24)(B), (C); 38 C.F.R. § 3.6(a). In turn, "active duty" includes full-time duty in the Armed Forces, other than active duty for training; and "Armed Forces" means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C. § 101(21)(A), (10), respectively. The "reserve component" includes the Air Force Reserve. Id. § 101(27)(D). Only "veterans" are entitled to VA compensation under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303(a). Thus, to establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). See also Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (the fact that a claimant has established status as a "veteran" for purposes of other periods of service (e.g., the veteran's period of active duty) does not obviate the need to establish that the claimant is also a "veteran" for purposes of the period of ACDUTRA or INACDUTRA where the claim for benefits is premised on that period of ACDUTRA OR INACDUTRA). Service connection for certain chronic diseases, including other organic diseases of the nervous system such as sensorineural hearing loss, may be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed 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). However, presumptive service connection does not apply to periods of ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). As such, the presumptive service connection provisions for chronic diseases under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a) apply to the appellant's claim only to the extent that a sensorineural hearing loss disability manifested to a compensable degree within one year of separation from his active duty service. Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). 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 (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Service connection for obstructive sleep apnea VA received the Veteran's claim for service connection for sleep apnea in September 2016. In support of his claim, he submitted a November 2001 private sleep study report, which reflects his reported history of loud snoring that disturbs others; poor quality, restless, and disturbed sleep; restless legs with crawling feelings; difficulty falling and maintaining sleep; and excessive daytime sleepiness. His weight was recorded as 235 pounds. The diagnosis was severe obstructive sleep apnea. He also submitted a January 2016 letter from his spouse. She related that her "first recollection of his sleep deprivation was when he was on his way to Hanscom AFB. . .in 1978 and [he] told me he dozed off and ran off the road." She reported that as the "year progressed, his need for sleep became more noticeable" and his "increasing level of snoring became almost unbearable." The Veteran's service personnel records document that in 1978, he had a 12-day period of annual ACDUTRA service in April with the Air Force Reserve at Andrews AFB in Maryland. Neither his service personnel records nor his service treatment records place him at Hanscom AFB in 1978 or at other times during active duty or any period of ACDTRA or INACDUTRA service. The Veteran's active duty and Reserve service treatment records are silent for complaints, diagnosis, or treatment related to sleep apnea or sleep problems generally. On active duty separation examination in August 1972, his weight was recorded as 185 pounds. In a September 1978 Air Force Reserve report of medical history, he denied currently or ever having frequent trouble sleeping. He identified his usual occupation as a territory sales representative. On examination the same day his weight was recorded as 200 pounds. In subsequent reports of medical history dated in July 1980, May 1984, March 1988, and March 1992, he again denied currently or ever having frequent trouble sleeping. The final medical examination report from his Air Force Reserve service, dated in March 1992, recorded his weight as 204 pounds. Effective in June 1995, the Veteran was assigned to the Retired Reserve Section of the Air Force Reserve. A December 2008 Reserve order placed him on the Air Force Retired List, Retired Reserve effective in January 2009. In March 2017, the Veteran emailed a VA clinic prior to his initial primary care appointment scheduled for April 2017 to identify his current medical concerns, which included sleep apnea diagnosed in 2001. He attached a copy of the 2001 sleep study and reported he "had suffered with sleep apnea long before it was diagnosed." In his May 2017 notice of disagreement (NOD), he asserted that when his 2001 diagnosis of sleep apnea "is taken into account with the fact that I fell asleep at the wheel on the way to Hanscom AFB in the 1970s. . .I think that shows I had sleep apnea long before 2001." In January 2020, the Veteran was afforded a VA fee-basis examination. He reported that his sleep apnea began in 1970; his symptoms at that time included daytime fatigue and snoring witnessed by his wife. The examiner reviewed the electronic claims file, including the 2001 sleep study, which confirmed a diagnosis of obstructive sleep apnea. The examiner opined it was less likely than not that the current sleep apnea disability was incurred in or caused by active duty service. In support of the conclusion, the examiner observed that service treatment records were silent for sleep apnea and the incident reported by the Veteran's spouse in which he fell asleep while driving occurred in 1978 when the Veteran was not on active duty. The examiner noted that the Veteran "also performed other periods of inactive duty for training and active duty for training" and considered the statement by the Veteran's wife that his "increasing level of snoring became almost unbearable." However, service treatment records were silent for sleep apnea. In compliance with the May 2019 Board Remand, which directed the designated examiner to opine as to whether any service-connected disabilities caused or aggravated the current sleep apnea disability, the January 2020 examiner also provided an opinion regarding secondary service connection. The Veteran's only service-connected disability is tinnitus. The examiner opined it was less likely than not that the Veteran's obstructive sleep apnea was either caused or aggravated by his service-connected tinnitus. The examiner explained that sleep apnea is a separate entity entirely from tinnitus and unrelated to it. The examiner emphasized that tinnitus would not cause sleep apnea, it would not cause obesity as an intermediate step leading to sleep apnea, and it would not aggravate sleep apnea. Instead, the two conditions are not medically related and the medical literature does not support a medical relationship. Having considered the medical and lay evidence of record, service connection for obstructive sleep apnea is not warranted. Competent medical evidence shows the Veteran was diagnosed with obstructive sleep apnea in November 2001, more than 29 years after separation from active duty service and more than six years after retiring from Reserve service. Although he reported during the January 2020 fee-basis examination that his sleep apnea began in 1970 with symptoms of daytime fatigue and witnessed snoring, the Veteran is not competent to render a diagnosis of sleep apnea based on these two reported symptoms because such matters require medical expertise, such as conducting and interpreting a sleep study. 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Therefore, the Veteran's statements regarding his sleep apnea disability being related to his service are not competent evidence as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to etiology. Moreover, numerous reports of medical history in which the Veteran denied currently or ever having frequent trouble sleeping tend to weigh against any finding that sleep apnea began during active duty service or a period of ACDUTRA service prior to being confirmed by a sleep study in November 2001. The lay evidence from the Veteran's spouse is also insufficient to connect the current sleep apnea disability to either his active duty service or to a period of ACDUTRA service. Again, his spouse first recalled him experiencing sleep deprivation and running off the road in 1978 while driving to Hanscom AFB. However, he was not on active duty in 1978 and service personnel records show he was stationed at Andrews AFB during his ACDUTRA service in April 1978. The only medical opinion to address the etiology of the Veteran's sleep apnea disability is from the January 2020 fee-basis examiner. The Board finds the examiner's opinion is probative and persuasive because it was based on a review of the claims file, including the Veteran's service records, the November 2001 sleep study, and lay statements from the Veteran and his spouse, and supported by an articulated medical explanation that is consistent with the remaining records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). There is no medical opinion to the contrary. As the preponderance of the evidence is against the Veteran's claim for service connection, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for bilateral hearing loss In his May 2017 NOD, the Veteran asserted that he performed his military service very close to the B-52E bombers at K.I. Sawyer Air Force Base (AFB) in the 1970 and he flew in missions during active duty [for training] in 1980 and 1981. He submitted an aerial photo map of the K.I. Sawyer AFB and an AFIS/RE Support Tour Critique pertaining to a lieutenant. He also submitted a Request and Authorization for Active Duty Training/Active Duty Tour showing he was required to serve for a 12-day period in February 1980. Finally, a Supplemental Evaluation Sheet for a 12-day period in February 1981 indicated the Veteran "assisted in the preparation and presentation of special threat briefings to C-141 and C-130 low level mission crews" and "[a]s a continuation to the special briefings, he flew on the missions of both platforms following the briefings." The question for the Board is whether the Veteran has a current disability that began during service, during the applicable presumptive period, or is at least as likely as not related to an in-service injury or disease. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Veteran was afforded a VA fee-basis examination in December 2016. Audiometry scores revealed a bilateral hearing loss disability for VA purposes. The audiologist diagnosed sensorineural hearing loss in each ear. Thus, the first criterion for establishing service connectiona current disabilityis met. The Veteran's DD214 identifies his occupational specialty as imagery intelligence officer; the related civilian occupation is listed as cartographer. His service treatment records are silent for complaints, diagnosis, or treatment for hearing problems. An entrance examination report is not associated with his service treatment records. His active duty service treatment records show he underwent audiometric testing at separation examination, the results of which are recorded as follows: HERTZ Date Ear 500 1000 2000 3000 4000 August 1972 (Separation) RIGHT 5 0 0 5 0 LEFT 10 10 5 15 10 The Veteran's Air Force Reserve service personnel records document his annual two-week ACDUTRA service during the following periods: May 1975; May 1976; April 1977; April 1978; April 1979; February 1980; February 1981; to April 1982; April to May 1983; April 1984 to May 1984; April to May 1985; April to May 1986; and May 1987. Annual performance reports from May 1975 to October 1993 documented duty titles of Air Intelligence Officer; Intelligence Applications Officer; and Intelligence Plans, Programs, Resources and Systems Staff Officer for the Air Force Intelligence Service. A February 1981 Supplemental Evaluation Sheet (AF Form 77) detailed that the Veteran "assisted in the preparation and presentation of special threat briefings to C-141 and C-130 low level mission crews" and as a "continuation to the special briefings, he flew on the missions of both platforms following the briefings." During his Air Force Reserve service, the Veteran underwent additional audiometric testing, the results of which are recorded as follows: HERTZ Date Ear 500 1000 2000 3000 4000 July 1980 RIGHT 0 0 0 10 0 LEFT 10 0 0 -5 5 May 1984 RIGHT 15 5 10 20 15 LEFT N/A N/A N/A N/A N/A March 1988 RIGHT 10 15 10 N/A 15 LEFT 10 10 10 N/A 15 March 1992 RIGHT 10 10 5 20 15 LEFT 10 0 5 15 20 In Air Force Reserve reports of medical history completed in September 1978, July 1980, May 1984, March 1988, and March 1992, the Veteran denied currently or ever having hearing loss or ear trouble. His Air Force Reserve treatment records are silent for complaints, diagnosis, or treatment related to hearing problems. Effective in June 1995, the Veteran was assigned to the Retired Reserve Section of the Air Force Reserve. A December 2008 Reserve order placed him on the Air Force Retired List, Retired Reserve effective in January 2009. A November 2015 treatment record from a private ENT physician, J. Toung, M.D., reflects the Veteran's report that he presented for a routine ear cleaning for ear wax impaction. He also complained of tinnitus that had gone on for years but seemed to be worsening and believed he had "some hearing loss as well." He stated that his "hearing has started diminishing more over the past six months or so," the timing of his diminished hearing had been gradual, and his hearing was worse with background noise and in group settings. After removal of impacted cerumen from both ears, he underwent audiometric testing. An audiogram recording the results appears to read as follows: HERTZ Date Ear 500 1000 2000 3000 4000 November 2015 RIGHT 15 5 15 45 50 LEFT 15 10 25 45 45 The diagnosis included bilateral sensorineural hearing loss and tinnitus. The physician recommended a hearing aid evaluation. Subsequent treatment records from the Bayne-Jones Army Community Hospital dated from January to Jun 2016 show the Veteran reported having trouble hearing women and children in everyday conversations and he was fitted for hearing aids. In September 2016, VA received the Veteran's claim for service connection for bilateral hearing loss and tinnitus. With his application for VA compensation benefits, he submitted a January 2016 statement from his spouse describing her observations and opinions regarding his hearing loss and tinnitus. She related that he had had "ringing in his ears for many years" and that the "hearing loss is very noticeable in that for years he has asked me to repeat what I have just said and he needs to have the TV turned up to an extraordinary level to understand what is going on." She expressed her belief that the "loss of hearing dates back to his early days in the Air Force," adding he was "first assigned to an Air Force unit in 1970 that had B-52 bombers and KC 135 tankers" and that the "noise level near where he worked was exceptionally high." She reported he was "required to go there every day and the roar of the engines could be heard up in the dependent housing area where we lived." She asserted that over the Veteran's "25 years in the Air Force, he was assigned to many operational units, which included helicopters and jets, so he was always exposed to engine noise." She emphasized that she and the Veteran and been married almost 46 years and believed she would know if there were any significant reasons for his hearing loss and tinnitus other than military noise exposure. In November 2016, the AOJ ordered an audiological examination and advised the designated examiner that the military occupational specialty (MOS) of "Intelligence (14NX) . . . had a moderate probability for noise exposure." In December 2016, the Veteran was afforded a VA fee-basis examination. He stated that he "worked around aircraft as [his] position in the service." He reported he had experienced hearing loss for many years that gradually increased in severity over the years. He disclosed a family history of hearing loss involving a parent. Regarding his claimed tinnitus, he reported that his tinnitus began in 1999 but he "never did anything about it other than take over-the-counter medication as advised by [his] physician." Audiometric testing confirmed a current bilateral hearing loss disability for VA purposes. The results were reported as follows: HERTZ Date Ear 500 1000 2000 3000 4000 December 2016 RIGHT 20 15 25 45 80 LEFT 35 30 25 40 40 Speech recognition scores using the Maryland CNC Test were recorded as 88 percent for each ear. The diagnosis was bilateral sensorineural hearing loss. Following a review of the electronic claims file, the audiologist opined it was not at least as likely as not that the current bilateral hearing loss disability was caused by or a result of military service. In support of the conclusion that the current bilateral hearing loss was less likely than not related to military noise exposure, the audiologist noted that the "Veteran's hearing thresholds at time of entrance and separation were within normal limits" and there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hertz for either ear. The examiner explained that "[a]ccording to the American College of Occupational Medicine Noise and Hearing Conservation Committee, 'a noise-induced hearing loss will not progress once it is stopped.'" Regarding the reported tinnitus, the examiner opined it was at least as likely as not that it was caused by military noise exposure because the "Veteran was exposed to excessive noise . . . during service" and "noise exposure (acoustic trauma) is known to cause tinnitus." Although the Veteran reported the onset of tinnitus being in 1999 after having retired from the Air Force Reserve, and active duty and Air Force Reserve medical records document his reports of never having had ear trouble or hearing loss, the February 2017 rating decision granted service connection for tinnitus based on the December 2016 fee-basis examination and medical opinion. In his February 2018 substantive appeal, the Veteran asserted that the December 2016 audiologist "never considered active duty at operational units in the Reserves from 1972 until I retired in 1995." In December 2019, another fee-basis audiologist reviewed the Veteran's electronic claims file and opined it was less likely than not that his current bilateral hearing loss disability was incurred in or caused by military noise exposure. The reviewing examiner explained that puretone thresholds at separation examination from active duty in 1972 were normal and too low for any significant permanent shift in hearing thresholds to have occurred from the time of enlistment in 1970. The examiner also explained that after 20 years since separation from active duty the Veteran continued to have normal hearing in 1992 with thresholds too low for any significant permanent shift greater than test variability and/or age corrections from age 21 to 43 to have occurred since entrance in 1970. The examiner summarized that the examination findings at separation from active duty in 1972 and in 1992 during the Veteran's Reserve service provided objective evidence of no permanent auditory damage from conceded noise exposure on active or Reserve duty. The examiner observed that there were no reports by the Veteran of decreased hearing or tinnitus in his service treatment records or any post-service records prior to 2015 and there was no continuity of care for or chronicity of hearing loss since separation. The examiner acknowledged that VA had conceded military noise exposure and the "relationship of noise, auditory damage, and hearing loss is established but auditory damage from noise and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise." As there was no permanent threshold shift greater than test variability and/or age corrections, there was evidence against a nexus between the current hearing loss and any military noise exposure in this case. The examiner also opined that a bilateral hearing loss disability did not manifest within a year of separation from active duty based on normal hearing documented 20 years after active duty service. Again, the examiner detailed that the shift in thresholds from 1972 to 1992 were consistent with age corrections and were not indicative of auditory damage or progression of loss or aggravation of loss beyond aging. The examiner acknowledged the report by the Veteran's spouse of excessive noise even near the dependent housing while on active duty but reiterated that the separation audiometric testing in 1972 provided evidence that no damage occurred to the Veteran's hearing. In a January 2020 addendum report, the December 2019 reviewing audiologist considered the report by the Veteran's spouse that his hearing loss dated back to his early days in the Air Force in the 1970s. The examiner acknowledged that the Veteran was [competent] to describe symptoms of hearing loss and to report exposure to excessive noise but not competent to identify the etiology of hearing loss. Notably, the wife's "statement of decrease in hearing in service is negated by objective evidence of no shift on active duty and no shift beyond age corrections on active and reserve duty." After considering the medical and lay evidence of record, including the 2015 private ENT report and statements from the Veteran and his spouse, the examiner concluded there was no basis to change the prior opinion. Having considered the medical and lay evidence of record, service connection for bilateral hearing loss is not warranted on any basis. First, the evidence of record demonstrates that a hearing loss disability was not incurred during active duty service and was not manifested to a compensable degree within one year of separation from active duty service. Notably, the Veteran's hearing was documented as normal for VA purposes on separation examination in August 1972 and on audiometric testing throughout his Reserve service. Accordingly, service connection for a hearing loss disability incurred in service or presumptively related to active duty service is not warranted. Second, the Veteran is competent to report perceived hearing loss or diminished hearing. The evidence in this case reflects that despite his reported history of noise exposure during active duty and Reserve service, he consistently denied experiencing any perceived hearing loss or ear problems during this time. His subjective reports along with the audiometry data weigh against a finding that the current bilateral hearing loss disability was either incurred in or caused by either active duty service or any period of ACDUTRA or INACDUTRA service. Similarly, between separation examination in August 1972 and the last audiometric examination performed during Air Force Reserve service in March 1992, the audiometric testing data reflect that the Veteran had a 15 decibel upward shift in right ear hearing acuity at 3000 and 4000 Hertz. Other threshold shifts represented a 5- or 10-decible change at most. The December 2019 and January 2020 fee-basis examiner, in particular, explained that the threshold shifts in hearing acuity between 1972 and 1992 were within normal test variability and consistent with aging by 20 years. There were no significant permanent threshold shifts greater than test variability and/or age corrections that would support the conclusion that the Veteran had a noise-induced hearing loss disability caused by active duty service or a period of ACDUTRA or INACDUTRA service. Finally, the Board finds the opinions of the December 2019 and January 2020 fee-basis examiner persuasive because they were based on a review of the claims file and supported by an articulated medical explanation that is consistent with the remaining records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). There is no medical opinion evidence to the contrary. As the preponderance of the evidence is against the Veteran's claim for service connection, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.