Citation Nr: A21020618 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 200527-88687 DATE: December 29, 2021 ORDER An initial compensable rating is denied for service-connected left ear hearing loss. Service connection is granted for obstructive sleep apnea. REMANDED Service connection for skin cancer is remanded. Service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran's left ear hearing loss has been manifested by hearing acuity of no worse than Level I on the VA Rating Schedule. 2. The Veteran's obstructive has a diagnosis of obstructive sleep apnea and his began during service. CONCLUSIONS OF LAW 1. The criteria have not been met for a compensable rating for service-connected left ear hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria have been met for service connection for obstructive sleep apnea. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to June 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected to opt-in to the Direct Review docket from the Legacy system. Therefore, the Board may only consider the evidence of record at the time of the April 2020 SOC. 38 C.F.R. § 20.301. Left Ear Hearing Loss Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects ability to function under the ordinary conditions of daily life, including employment, by comparing the symptoms that the Veteran experiences with the criteria in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Evaluations of impaired hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes eleven auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). Factual Background The Veteran initially filed an October 2016 claim for service connection for hearing loss. An April 2017 rating decision granted service connection for a left ear hearing loss disability. The Veteran filed an August 2017 claim for an increased rating and a December 2017 rating decision denied a compensable rating. The Veteran filed a claim for an increase rating before the April 2017 rating decision became final. Therefore, the period on appeal begins with the October 2016 date of claim. The Veteran received April 2017 and November 2017 VA examinations. The April 2017 VA examination reveals that the Veteran reported difficulty understanding speech. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 15 25 10 15 94% LEFT 20 25 35 55 45 100% Applying the results to Table VI, the findings yield a numeric designation of Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A November 2017 VA examination reveals that the Veteran reported losing conversations and being unable to pick up what the other person is saying. The Veteran stated people are speaking too low and sometimes he misses information on conference calls. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 20 25 10 16 98% LEFT 25 30 45 60 40 100% Applying the results to Table VI, the findings yield a numeric designation of Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Analysis Based on the evidence above, a compensable rating for the Veteran's left ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's difficulty hearing speech and trouble following conversations. The Veteran is competent to report these observable difficulties and the Board does not doubt his credibility. However, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. In other words, the functional impact that the Veteran has described is already contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is expressly what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim for a compensable rating for left ear hearing loss. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). [CONTINUED ON NEXT PAGE] Sleep Apnea Legal Criteria Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Factual Background The Veteran filed an October 2016 claim for service connection. A July 2017 VA sleep study showed a diagnosis for obstructive sleep apnea. In an April 2018 statement, the Veteran's wife reported: "I have known [the Veteran] since before he departed the service back in 1995 and can confirm that he has always had a sleep disorder to include irregular breathing, [and] gasping for air in his sleep and [he would] even stop breathing at times." Analysis First, there is a current disability. Obstructive sleep apnea was confirmed by the July 2017 VA sleep study. Second, the most probative evidence of record establishes that sleep apnea began during service because the Veteran's wife reported that she knew the Veteran in 1993, two years prior to his release from active duty, and that during that time, he was already having irregular breathing while sleeping as well as gasping for air and stopping breathing at time. The Board finds the Veteran's wife's statements competent and credible evidence supporting in-service incurrence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (explaining that lay persons are qualified to report observable symptoms and medical events). Accordingly, service connection for obstructive sleep apnea is granted on the basis of in-service incurrence. REASONS FOR REMAND Remand is required to correct two pre-decisional duty to assist errors. 1. Service Connection for Skin Cancer The Veteran has a current diagnosis of multiple non-melanoma skin cancers (see May 2017 letter from Dr. R.T.). He has submitted an April 2018 positive causal linkage (nexus) opinion from Dr. L.H., who opined that the Veteran's skin cancer was at least as likely as not related to his military service. The rationale was that the Veteran had extensive sun exposure during service, included at locations close to the equator. In other words, the rationale of the positive causal linkage opinion is that the Veteran experienced the type of in-service injury (extensive equatorial sun exposure) that would cause the skin cancer that the Veteran has. See Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012) (explaining that VA must read an examination report or opinion as a whole). Therefore, the only missing element for this claim is documentation of the in-service injury (extensive equatorial sun exposure). The Veteran's DD-214 shows that he had foreign service for eight years, but it is not clear exactly where he served. Obtaining this information is essential because extensive equatorial sun exposure during service is the basis for the positive causal linkage opinion. Therefore, remand is required to obtain the Veteran's service personnel record (SPR), which are not currently part of the claims file. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the federal department or agency advises VA that the requested records do not exist, or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Accordingly, remand is required to obtain outstanding SPRs. 2. Service Connection for Hypertension In addition, remand is required for an examination and opinion as to the cause of the Veteran's hypertension. The Veteran did not receive a VA examination for hypertension. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). A July 2014 private treatment record showed the Veteran had essential hypertension. In March 2018, the Veteran's private physician opined it was more likely than not that PTSD predisposed the Veteran to hypertension. The opinion is not clear regarding causation or aggravation and does not provide an adequate rationale for direct service connection. Accordingly, remand is required to provide the Veteran with a VA examination and obtain a causal linkage opinion. The matters are REMANDED for the following action: 1. The Veteran's claims file does not appear to contain his complete service personnel records (SPRs) for his period of active duty service. As the SPRs may contain information regarding the Veteran's service near the equator (the basis for the positive causal linkage opinion for skin cancer), a remand is required to obtain them. 2. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. The examiner is asked to provide a response to the following questions: Is hypertension at least as likely as not (a 50 percent or greater likelihood) directly related to service? Is hypertension at least as likely as not (a 50 percent or greater likelihood) proximately due to service- connected PTSD? [In answering this question, the examiner must consider and account for the March 2018 private positive opinion and explain any conclusions that may differ from the March 2018 opinion provider.] Is hypertension at least as likely as not (a 50 percent or greater likelihood) aggravated, i.e., worsened beyond its natural progression, by service-connected PTSD? [In answering this question, the examiner must consider and account for the March 2018 private positive opinion and explain any conclusions that may differ from the March 2018 opinion provider.] A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C 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.