Citation Nr: 21009276 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-06 648A DATE: February 22, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected migraine headaches, is denied. Entitlement to service connection for carpal tunnel syndrome (CTS) of the left wrist is denied. Entitlement to service connection for CTS of the right wrist is denied. Entitlement to a compensable disability rating for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s current obstructive sleep apnea was not incurred during or caused by his period of active service; any current obstructive sleep apnea is unrelated to service. 2. The Veteran’s current obstructive sleep apnea was not caused or aggravated beyond its natural progression by his service-connected migraine headaches. 3. The Veteran’s current CTS of the left wrist was not incurred during or caused by his period of active service; any current CTS of the left wrist is unrelated to service. 4. The Veteran’s current CTS of the right wrist was not incurred during or caused by his period of active service; any current CTS of the right wrist is unrelated to service. 5. The Veteran’s current left ear hearing loss manifests in no worse than Level I hearing impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 2. The criteria for service connection for CTS of the left wrist are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 3. The criteria for service connection for CTS of the right wrist are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 4. The criteria for entitlement to a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.85, 4.86, Diagnostic Code 6100, and Tables VI, VIA, and VII (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1978 to February 1994; he also had service in a Reserve component and the National Guard from February 1994 to September 2001. The Veteran’s claim was previously before the Board in June 2018 but was remanded for further development. Specifically, the Veteran’s claim was returned to the Agency of Original Jurisdiction (AOJ) to obtain additional VA medical opinions regarding the Veteran’s claim for sleep apnea and CTS of the bilateral wrists. Further, the Veteran was to be provided an audiological examination to determine the severity of his left ear hearing loss. The required medical opinions and examination have been completed and associated with claims file. The obtained VA medical opinions and examination are adequate because they were based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because it describes his disabilities in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected migraines The Veteran claims entitlement to service connection for sleep apnea. In his June 2011 claim, he attributed his sleep apnea to his migraines. In a March 2012 statement, he argued that his sleep apnea was related to his migraines. A February 2020 private medical record notes a current diagnosis of obstructive sleep apnea. Medical records note that the Veteran’s was initially diagnosed with obstructive sleep apnea in February 2008, 15 years after he completed his active service. A report of medical history completed by the Veteran in October 1995 after his completion of active service, is silent for complaints of or a diagnosis for sleep apnea. In May 1996, he underwent an electroencephalogram (EEG) for his migraines, and during this test “normal drowsiness” was seen and “normal stage II sleep” was identified. No sleep abnormalities were noted during the test while he was asleep. A private treatment record from September 1996 noted that the Veteran was able to sleep after taking medication for his migraines. In December 1996, he reported that he had difficulty with sinus congestion, and that he felt it contributed to his migraines. He also thought that irregular sleep was a trigger for migraines. At his January 2008 sleep study, he reported snoring, problems falling and staying asleep, stopping breathing while asleep, nonrestorative sleep, and excessive somnolence. He did not state when these symptoms began. A September 2019 VA medical opinion regarding direct service connection, completed following an in-person examination and review of the Veteran’s medical history, concluded it was less likely than not that his obstructive sleep apnea was incurred during or caused by his period of active service. The medical opinion noted that “[t]here is no record of symptoms, signs, investigation, diagnosis or treatment of Sleep Apnea during veteran's service period. [The Veteran] left military service on 2/15/94 and his diagnosis of Sleep Apnea was made on 1/17/08.” The Veteran has not provided a lay statement in support of direct service connection and argues instead that his sleep apnea is secondary to his service-connected migraines. In his July 2011 claim, he attributed his sleep apnea to his migraines. In his March 2012 statement, he observed that he had frequent migraines and was sluggish and tired waking up in the mornings. He stated that there were studies by doctors finding that sleep apnea is linked to migraines during REM sleep. An additional September 2019 VA medical opinion also found that it was less likely than not that the Veteran’s obstructive sleep apnea was caused or aggravated by his service-connected migraines. The medical opinion notes that the Veteran’s obstructive sleep apnea and service-connected migraines are medically unrelated conditions, and that medical literature does not support a relationship between the two conditions. The examiner also explained that there was no evidence in the record to show that migraines aggravated the Veteran’s sleep apnea beyond its natural progression. The Veteran is competent to describe his sleep-related symptoms. His descriptions are also credible. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the specific issue in this case, the etiology of the Veteran’s sleep apnea, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Determining whether the Veteran’s sleep apnea is caused or aggravated by his service-connected migraines requires inquiry into biological processes, pathology, physiological functioning, and the impact of migraines on sleep. These internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have the skills, experience, or medical training needed to make such a complicated determination. His opinion is not competent evidence. The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran’s obstructive sleep apnea. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. 2. Entitlement to service connection for CTS of the bilateral wrists The Veteran contends that his CTS of the bilateral wrists was incurred during or caused by his period of active service. In May 2019, the Veteran submitted private medical treatment records establishing a diagnosis of CTS of the bilateral wrists. Additionally, the Veteran’s current diagnosis of CTS of the bilateral wrists was confirmed in a September 2019 peripheral nerve conditions examination. Further, the Veteran’s service treatment records note a right wrist injury in April 1989 and left wrist in March 1990. At issue in the present case is if the Veteran’s current carpal tunnel syndrome was incurred during or caused by his period of active service. In a March 2012 lay statement, the Veteran asserted that his CTS was caused by his active service as a clerk typist. In May 2012, the he submitted a lay statement noting he was issued a profile for a wrist disability while serving with the Army National Guard from 1996 to 2000. The Veteran noted that his carpal tunnel pain had existed for some time but was most severe following his wrist sprain. The Veteran’s service treatment records contain an August 1996 profile for CTS, and a diagnosis of CTS on his February 1997 report of medical examination. In September 2019, the Veteran completed a peripheral nerve conditions VA examination. The examination included a review of the Veteran’s service treatment and medical records. The examiner confirmed the Veteran’s diagnosis of CTS of the bilateral wrists. Following examination, the examiner concluded it was less likely than not that the Veteran’s current CTS was incurred during or caused by his period of active service. An addendum medical opinion regarding the etiology of the Veteran’s CTS was associated with the claims file in October 2020. The October 2020 opinion reasoned: Review of all available medical evidence was reviewed, to include Veterans lay statements received March and May of 2012. It is less likely than not that the Veteran's bilateral carpal tunnel syndrome (CTS) occurred in or had an onset during service. The Veteran's lay testimony was reviewed and while he is deemed competent to report a chronology of symptoms - he is not capable of diagnosing those symptoms. There is no objective evidence to support a diagnosis or onset of carpal tunnel syndrome while in [active] service. During service he had tendonitis which resolved with treatment within 10 days. The Veteran has submitted evidence that he was served with the Manassas Army National Guard from 1996-2001 and had a T3 profile for carpal tunnel during that time. He ascribes the onset of the [bilateral] CTS to typing during service. However, there is no objective evidence of carpal tunnel during service. The Veteran had a career as a computer specialist after service - which would involve frequent and prolonged typing and work on a keyboard - which is a common cause of CTS. It is at least as likely as not that the bilateral carpal tunnel syndrome developed after service. There is no established medical nexus for the bilateral [CTS] due to service. The Board notes that the Veteran’s October 1995 report of medical history, completed after the Veteran’s period of active service, is silent for complaints of wrist pain or a diagnosis of CTS. The first diagnosis of CTS is not noted until September 1995, nearly 17 months after the Veteran’s completion of active service. At present, the probative medical evidence of record does not contain a medical opinion or evidence establishing that the Veteran’s CTS was incurred during or caused by his period of active service. While the Veteran’s description of his symptoms is both competent and credible, he is not competent to provide an opinion as to the etiology of his CTS. Determining the etiology of CTS involves inquiry into internal processes that are not readily observable, as well as the impact of in-service and post-service typing on the body. The Veteran in this case has not been shown by the evidence of record to have the skills, experience, or medical training needed to make such a complicated determination. His opinion is not competent evidence. The findings of the VA examiner are the most probative evidence of record. The Board finds that it is less likely than not that the Veteran’s current CTS was incurred during or caused by his period of active service. The preponderance of the evidence is against the claim for service connection for the Veteran’s CTS. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to a compensable disability rating for left ear hearing loss The Veteran currently has a noncompensable rating for his service-connected left ear hearing loss. He contends that his hearing disability is more severe than currently evaluated. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VIa establishes a Roman numeral designation based only on the pure tone threshold average. 38 C.F.R. § 4.85(c). However, Table VIa will only be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.85(c). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). In March 2012, the Veteran underwent a private audiogram. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. LEFT 15 20 20 65 30 Speech recognition ability was 96 percent in the left ear. However, the private audiologist specified that the test was conducted using the NU-20 materials. Because the Maryland CNC Test was not used, this audiogram is not sufficient for rating purposes. Even if it were usable, it would still result in Level I hearing loss for the left ear. On the VA audiological evaluation in October 2019, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. LEFT 15 20 30 65 33 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 98 percent in the left ear. The results do not present an exceptional pattern of hearing impairment. At the examination, he stated that he had difficulty hearing in noisy environments, group situations, and from a distance. He stated that he had to ask people to repeat themselves often. The results of the October 2019 examination show Level I hearing loss. The Veteran’s hearing loss results in a functional impairment of not being able to adequately hear other in conversation and the need to frequently as people to repeat themselves. All the Veteran’s hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. The Veteran’s hearing loss disability has manifested in difficulty hearing speech, which causes difficulties functioning in social and occupational environments. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Applying the results to Table VI yields a finding of Level I hearing loss in the left ear. Under 38 C.F.R. § 4.85(f), the nonservice-connected right ear is assigned a Level I impairment. When applied to Table VII, a noncompensable rating is warranted. Where hearing loss is at Level I in the right ear, and Level I in the left ear, a non-compensable disability rating is assigned under Table VII in 38 C.F.R. § 4.85. An exception to 38 C.F.R. § 4.85(f)is if hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more, and the nonservice-connected ear’s hearing loss meets the criteria set forth in 38 C.F.R. § 3.385. In such a case, hearing loss will be evaluated as if both disabilities were service-connected. 38 C.F.R. § 3.383. The Veteran’s left ear hearing loss does not meet the criteria for a compensable rating. The exception does not apply. Based on a review of the evidence, the Board finds that a compensable disability rating is not warranted. A mechanical application of the rating criteria shows the Veteran’s hearing loss disability does not meet the criteria for a higher rating. In reaching this conclusion, the Board has determined that the VA medical examinations are highly probative evidence. The Veteran’s lay statements as to his symptoms are not competent evidence of hearing loss as it conforms to VA rating criteria. Therefore, the preponderance of the credible evidence is against an increased evaluation. (Continued on the next page)   To the extent that the Board herein denies a higher rating, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.