Citation Nr: 21074489 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-58 363 DATE: December 15, 2021 ORDER Entitlement to service connection for hearing loss is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The Veteran does not suffer from hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) from a March 2016 and December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in March 2021. A transcript of that hearing has been added to the Veteran's file. This issue was previously remanded by the Board in July 2021 and has since been returned for further adjudication. 1. Entitlement to service connection for hearing loss is denied. The Veteran contends that he has hearing loss as a result of service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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 service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as an organic disease of the nervous system like sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For the 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 and 4000 Hertz (Hz) is 40 decibels or greater; or when the 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 threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service treatment records reflect that the Veteran had normal hearing throughout his time in service. The Veteran underwent VA examinations in January 2015 and August 2021, with audiological results as follows: January 2015: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 10 LEFT 10 10 10 15 15 Speech discrimination scores for both ears was 96 percent. August 2021: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 20 15 LEFT 20 10 15 20 15 Speech discrimination scores for both ears was 100 percent. Both VA examiners stated that the Veteran's hearing was normal for VA purposes. A current hearing loss disability is not established. The January 2015 and August 2021 VA examination reports show that Veteran's puretone thresholds are not 40 decibels or higher at any of the relevant frequencies, or 26 decibels or higher at three or more of the relevant frequencies, in either ear. The speech recognition scores were 96 and 100 percent. Accordingly, the preponderance of the evidence weighs against a current hearing loss disability. See 38 C.F.R. § 3.385. In the absence of a current disability, service connection cannot be awarded. REASONS FOR REMAND 1. Entitlement to service connection for OSA is remanded. The Veteran contends that he suffers from sleep apnea due to weight gain from his service-connected disabilities as well as from muscle relaxer medications that he takes for his service-connected disabilities. While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service injury or disease for service connection purposes, obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran's service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Walsh, 32 Vet. App. at 306-7. An opinion must be obtained to determine whether a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, and if so, (b) whether the obesity or aggravation of obesity resulting from service-connected disability was a substantial factor in causing his OSA such that his OSA would not have occurred but for the obesity caused or aggravated by service-connected disability. Additionally, the examiner should opine if any of the medications that the Veteran takes for his service-connected disabilities, including muscle relaxers, caused or aggravated his OSA. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for OSA. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination for his sleep apnea. The examiner should address whether the Veteran's OSA is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) any medications taken to treat his service-connected disabilities, to include tizanidine, a reported muscle relaxant. The examiner should additionally address (a) whether a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, and if so, (b) whether the obesity or aggravation of obesity resulting from service-connected disability was a substantial factor in causing OSA such that the OSA would not have occurred but for the obesity caused or aggravated by service-connected disability. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.