Citation Nr: 21005277 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-24 750A DATE: February 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a disability manifested by sleeping problems, to include obstructive sleep apnea (OSA), is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had bilateral hearing loss for VA purposes at any time during or approximate to the pendency of the claim. 2. The Veteran’s complaint of problems sleeping is a symptom of service-connected anxiety disorder for which he has already been compensated as well as OSA, a distinct disability which is not secondary to service-connected disability and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a distinct disability manifested by sleeping problems, to include as due to service-connected anxiety disorder and OSA, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 27, 2002 to May 17, 2003; from January 12, 2006 to October 23, 2006; and from December 3, 2008 to January 7, 2010. This matter is before the Board of Veterans’ Appeals (Board) following a Board remand in October 2018. In March 2018, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has hearing loss that is related to his active duty service. The Veteran testified in March 2018 that he relates his hearing loss to noise exposure in service and that he has had symptoms of hearing loss since he was in service. In fact, the AOJ conceded that the Veteran suffered exposure to acoustic trauma in a June 2014 Decision Review Officer decision which granted service connection for tinnitus. The question for the Board is whether the Veteran has a current hearing loss disability that began during service or is at least as likely as not related to conceded in-service exposure to acoustic trauma. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 then operated to establish when a hearing loss could be service connected. Hensley, 5 Vet. App. at 159. For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 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 or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran underwent VA examination in May 2014 at which time authorized audiological evaluation demonstrated pure tone thresholds, in decibels, were as follows:          HERTZ       500 1000 2000 3000 4000 RIGHT 10 20 15 10 15 LEFT 15 20 20 15 10 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 98 percent in the left ear. The Veteran underwent VA examination in January 2020 at which time authorized audiological evaluation demonstrated pure tone thresholds, in decibels, were as follows:        HERTZ       500 1000 2000 3000 4000 RIGHT 20 25 20 15 20 LEFT 15 25 25 20 10 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The Board concludes that the Veteran does not have a current diagnosis of hearing loss for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Neither VA examinations revealed values that would constitute hearing impairment for either ear according to 38 C.F.R. § 3.385. While the Veteran is competent to report subjective hearing loss, he is not competent to determine whether it is disabling for VA compensation purposes, as this is not a matter of lay observation but rather can only be established through objective clinical testing - namely, by way of an audiogram and Maryland CNC speech discrimination test. See 38 C.F.R. § 3.385; see also Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer). Moreover, the Board accords more weight to the VA audiological examinations reports than to the Veteran's lay statements in support of his claim. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the medical issue in question). The Veteran’s representative noted in a December 2020 Post-Remand Brief that the January 2020 VA examiner provided a negative opinion regarding hearing loss solely due to the fact that the appellant did not meet the thresholds to grant service connection and, that if the Board was unable to grant service connection for bilateral hearing loss, a remand was requested to readdress the inadequate medical opinion of record. However, this is not the case. The VA examiner specifically found that there was no diagnosis of hearing loss because there were no findings, signs and or symptoms to support a diagnosis. In its October 2018 remand, the Board directed, “The examiner should provide an opinion as to whether it is at least as likely as not that any current hearing loss disability had its onset during active service or is related to the Veteran’s in-service exposure to traumatic noise which has been conceded by VA.” The VA examiner specifically noted that the question was not applicable because the Veteran had no diagnosis of hearing loss in either ear, and that his hearing continues to be within normal limits. As such, remand for an additional examination and/or opinion is not required. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. 2. Entitlement to service connection for a disability manifested by sleeping problems The Veteran asserts that he has a disability manifested by sleeping problems that is related to his active duty service. The Veteran has been diagnosed as having obstructive sleep apnea (OSA). The preponderance of the evidence, however, weighs against finding that the Veteran’s OSA began during service; is otherwise related to an in-service injury, event, or disease; or is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. §§ 3.303, 3.310(a). The Veteran’s service treatment records include an August 2009 post-deployment examination showing that he complained of problems sleeping or still feeling tired after sleeping, as well as increased irritability. On VA psychiatric examination in December 2011, the Veteran stated that after his second tour in Iraq he had trouble sleeping and anxiety. He stated that he was a light sleeper and had unsettling dreams about events in Iraq. The examiner diagnosed the Veteran as having an anxiety disorder. Under the section designated to list all symptoms that apply to the Veteran’s diagnosis, the examiner checked “chronic sleep impairment.” In May 2014, the Veteran underwent VA examination at which time it was determined that the Veteran did not have OSA. The Veteran stated, “I don’t really sleep that much, I don’t get the full deep sleep, I sleeps about 5 hours every night.” The Veteran also stated that he had a sleep study when he was 14-15 years old to evaluate these symptoms and stated that the result of the study was “my legs would twitch,” no sleep apnea, and no other abnormalities. At that time, the Veteran did not have any findings, signs, or symptoms attributable to OSA. The examiner opined, “There is insufficient objective evidence to warrant the diagnosis of sleep apnea disorder or residuals thereof. The report[] by the Veteran [of] sleeping difficulties are non-specific, pre-existing (prior to military service, see Medical History section) and SMR do not show evidence of aggravation during military service.” During his March 2018 hearing before the Board, the Veteran testified that his sleep problems coincided with his anxiety and PTSD. In March 2018, VA treatment records reflect that the Veteran was referred for a sleep study due to complaints of feeling like he had to move his legs and arms in his sleep and waking up frequently throughout the night due to movements; stopping breathing in his sleep; snoring; and feeling fatigued after waking up. A sleep medicine consultation in May 2018 showed that the Veteran reported snoring, gasping during sleep, awakening with dry mouth, and feeling tired. He was diagnosed as having an unspecified sleep disorder and provided with a home sleep apnea test which showed five to 14 episodes of apnea or reduced airflow to the lungs every hour. The Veteran underwent a VA sleep medicine consultation in June 2018 at which time the diagnosis of OSA was made. On VA psychiatric examination in January 2020, the Veteran reported significant and chronic sleep disturbance, with an average of five hours of sleep reported, fitful/restless sleep in which he moves in his sleep. He stated that, "I'll wake up with the CPAP wrapped all around me." He endorsed trouble falling asleep and staying asleep and having tried medications for sleep assistance. He reported chronic associated impairment during the day as result, including difficulty staying awake and never feeling rested. The Veteran reported that this had been ongoing for years. The examiner stated that the Veteran’s symptoms of sleep impairment are more appropriately subsumed under his diagnoses of anxiety and depression. She stated that, “Post deployment health assessment from Aug 2009 indicates Veteran bothered by sleep disturbances and irritability. Records reflect Veteran reporting and seeking treatment for anxiety and depression at least as early as April 2016, establishing history of both conditions. Veteran's anxiety related to service experiences and being around people, irritability and hypersensitivity to certain stimuli as evidenced by [] job experience. High anxiety & depression during daytime often relates to difficulty sleeping at night, with impaired ability for mental relaxation, corroborated by Veteran's report of being ‘mentally worn out’, ruminative negative thought patterns and never feeling rested. It is at least as likely as not that the Veteran's symptom of difficulty sleeping is in part due to his service-connected anxiety and in part due to the diagnosis of depression. Differentiating which diagnosis impacts the sleeping more is not possible due to overlapping.” On VA examination in February 2020, a VA examiner stated, “Considering history as related by [the Veteran], current exam, and review of medical records to include the [Veteran’s] electronic folder, I opine that the claimed condition was at least as likely as not incurred or caused by the claimed condition during service. The BVA remand letter was reviewed and the [Veteran] was found to have severe anxiety upon review of VA service treatment record dated 5/29/19. Upon medical literature review excessive and persistent worrying is widely regarded as the pathognomic feature of generalized anxiety disorder (GAD), most patients present with other symptoms relating to hyperarousal, autonomic hyperactivity and muscle tension. Many complain of poor sleep, fatigue and difficulty relaxing. The [Veteran] upon service treatment records complains of difficulty sleeping, therefore I opine that the claimed condition was at least as likely as not caused by the service connected condition.” A July 2020 medical opinion based on a review of the record found that the Veteran’s OSA was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that obstructive sleep apnea represented a disease with a clear and specific etiology and diagnosis and was not related to any specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner noted that anatomic risk factors for obstructive sleep apnea included obesity, an oropharynx “crowded” by a short or retracted mandible, a prominent tongue base or tonsils, a rounded head shape and a short neck, a neck circumference greater than 43 cm, thick lateral pharyngeal walls, or lateral parapharyngeal fat pads and that other identified risk factors included aging and alcohol or sedative use. The examiner noted that a history of anxiety disorder was not a risk factor for developing OSA and that a review of the medical literature was silent for any mechanism by which anxiety disorder might cause or aggravate OSA and that OSA could worsen symptoms of anxiety. The examiner stated that the Veteran’s OSA was a stand-alone entity neither caused by nor aggravated by service-connected anxiety disorder. The examiner further noted that "chronic sleep impairment" was one of the symptoms associated with the Veteran’s diagnosed anxiety disorder per the December 2011 VA psychiatric examination. Here, no medical professional has ever related the Veteran’s OSA to his active duty service or to his service-connected anxiety disorder. The Board acknowledges that the February 2020 VA examiner concluded that the Veteran’s condition was at least as likely as not incurred or caused by the claimed condition during service and/or at least as likely as not caused by the service connected condition. However, when viewed in the context of the examiner’s supporting rationale, the examiner’s opinion is actually attributing the Veteran’s symptom of difficulty sleeping to his service-connected anxiety disorder that had its onset during service. The examiner does not mention the Veteran’s diagnosis of obstructive sleep apnea anywhere in the report. Instead, the examiner discussed the Veteran’s sleeping difficulty as a feature of his anxiety disorder, explaining that excessive and persistent worrying is widely regarded as the pathognomic feature of generalized anxiety disorder and that most patients present with other symptoms including poor sleep, fatigue and difficulty relaxing. In noting the Veteran’s complaints of difficulty sleeping during service, he concluded that “the claimed condition was at least as likely as not caused by the service connected condition,” referring to the Veteran’s service-connected anxiety disorder. The examiner did not diagnose any separate sleep disorder or discuss the Veteran’s diagnosed OSA. Rather, the examiner essentially attributed the Veteran’s symptoms of difficulty sleeping to his already service-connected anxiety disorder which had its onset in service. The July 2020 VA examiner specifically concluded that the Veteran’s OSA was a stand-alone entity neither caused by nor aggravated by his service-connected anxiety disorder and not related to any specific exposure or event experienced by the Veteran during service. In so finding, the examiner considered the Veteran’s report of problems sleeping or still feeling tired after sleeping during service in August 2009, listed under the evidence reviewed. The examiner’s opinion was supported by a detailed rationale based upon a review of the Veteran’s file, as well as medical literature, and is found to be probative. While the Veteran reported problems sleeping or still feeling tired after sleeping during service in August 2009, these symptoms were attributed to his already service-connected anxiety disorder by the February 2020 VA examiner. Again, the July 2020 VA examiner also considered these symptoms in concluding that the Veteran’s sleep apnea was not related to service. Sleep apnea was not diagnosed during service or until several years after service, i.e., in 2018. On VA examination in May 2014, the examiner specifically found that the Veteran did not have OSA at that time. There is no probative evidence of record showing that the Veteran’s OSA had its onset during service or is related to any incident of service. To the contrary, the July 2020 VA examiner concluded that the Veteran’s OSA was not related to any specific exposure or event experienced by the Veteran during service. To the extent that the Veteran believes his OSA is the result of his active duty service or proximately due to or the result of a service-connected disability, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record. Aside from the diagnosis of OSA, the Veteran also has symptoms of difficulty sleeping which have been attributed to his service-connected anxiety disorder by the December 2011, January 2020, February 2020 and July 2020 VA examiners. The Veteran’s anxiety disorder is currently evaluated as 30 percent disabling under Diagnostic Code 9413; the symptom of “chronic sleep impairment” is used to support this evaluation. 38 C.F.R. § 4.130. VA regulations prohibit compensating a claimant twice for the same symptomatology. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.126(d) instruct that when a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate the disability under a diagnostic code that represents the dominant (more disabling) aspect of the condition. Thus, the symptom of chronic sleep impairment is part and parcel of the Veteran’s anxiety disorder which is currently evaluated as 30 percent disabling under Diagnostic Code 9413; and the record is absent evidence of a nexus between the Veteran’s OSA and his active duty service or service-connected anxiety disorder. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a disability manifested by sleeping problems, to include OSA, and the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Olson, 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.