Citation Nr: 21011615 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 19-34 784 DATE: March 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The Veteran does not have a hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1989 to April 1993. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in March 2018 and a statement of the case (SOC) was issued in October 2019. The Veteran perfected his appeal by filing a VA Form-9 in November 2019 and did not elect to appear before the Board for an optional hearing. The Board notes that the October 2019 SOC considered the Veteran’s VA outpatient treatment records from received January 2018 through August 2018. However, VA outpatient treatment records from November 2017 through March 2020 were subsequently associated with the claims file. The Agency of Original Jurisdiction has not considered these records in connection with the issues on appeal. With respect to the Veteran’s bilateral hearing loss claim, the additionally received records are not pertinent and a waiver is not necessary. Specifically, the records do not document the Veteran’s complaints or treatment for hearing loss. The Board notes that 38 C.F.R. § 19.37(a) requires the evidence to be referred to the appropriate rating or authorization activity for review and disposition unless the additional evidence received duplicates evidence previously of record which was discussed in the SOC or a prior Supplemental Statement of the Case (SSOC), or the additional evidence is not relevant to the issue, or issues, on appeal. The term “relevant” means noncumulative and pertinent to the matter at issue in the case. See Kisor v. Shulkin, 869 F.3d 1360, 1368-69. In this case, the new VA treatment records do not show a diagnosis or treatment for hearing loss. As such, because the treatment records do not relate to the Veteran’s claim for bilateral hearing loss, a waiver of initial consideration by the AOJ is not necessary. See 38 C.F.R. § 20.1304. Although the records also address the Veteran’s sleep apnea, the claim for entitlement to service connection for sleep apnea is being remanded. As a result, there is no prejudice to the Veteran in the Board’s adjudication of the claim for entitlement to service connection for hearing loss at this time. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he suffers from hearing loss as a result of noise exposure in service. The Veteran specifically claims that he was “exposed on a daily basis to extremely loud metal work and construction such as grinding, wielding, riveting, hammering, etc.” He also states that his living quarters were three levels below the aircraft launching mechanism, which constantly exposed him to noise pollution. See June 2017 correspondence. 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). The Veteran’s service treatment records are silent for any signs or symptoms of hearing loss. The Veteran was provided with a VA hearing loss examination in November 2017 which produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 20 30 LEFT 20 20 20 25 25 The Veteran’s speech recognition scores, using the Maryland CNC Test, were 96 percent in the right ear and 98 percent in the left ear. The VA examiner noted normal hearing bilaterally. The examiner found that “an opinion regarding hearing loss is not needed because the degree of hearing loss is considered to be non-disabling for VA purposes.” 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 500, 1000, 2000, 3000, 4000 Hertz (Hz) 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. There is no question that the Veteran’s hearing is impaired, as the November 2017 VA examination clearly identifies a hearing impairment. However, the question to be resolved is whether such hearing loss constitutes a disability for VA purposes under 38 C.F.R. § 3.385. Based on the November 2017 VA examination discussed above, the Board finds that service connection is not warranted for bilateral hearing loss. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no clinical evidence of hearing loss for VA purposes at any time during the pendency of this appeal. Accordingly, service connection for bilateral hearing loss must be denied. The preponderance of the evidence is against the claims and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, including as secondary to service-connected PTSD The Veteran contends that he suffers from sleep apnea that first exhibited symptoms in service. In the alternative, the Veteran contends that his sleep apnea is secondary to his service-connected PTSD. The Veteran’s service treatment records show that he complained of feeling tired and falling asleep after only 10 minutes of sitting in September 1990. Lay statements from servicemembers that served with the Veteran note that he would snore and gasp for air while sleeping in service. The Veteran was also noted to appear tired and report to work complaining about his lack of rest. See April 2019 and January 2020 buddy statements. The Veteran’s post-service medical records include a private sleep study from June 2008 indicating a diagnosis for mild sleep apnea. The Veteran submitted a June 2018 private medical opinion indicating that the Veteran’s PTSD is aggravated by his sleep apnea. However, the Board notes that this opinion was not supported by any rationale. The Veteran also submitted a January 2020 private medical opinion which indicates that PTSD “could interfere with OSA treatment, which requires consistent wearing of CPAP mask throughout sleep stages.” The private physician noted that he was “not able to objectively qualify or quantify the effect of PTSD” on the Veteran’s treatment for OSA. The Board notes that although this opinion suggests that the Veteran’s PTSD “could” interfere with his treatment for sleep apnea, it does not establish that the Veteran’s sleep apnea is more likely than not proximately due to or aggravated by his PTSD. The Board cannot make a fully informed decision on the issue of entitlement to service connection for sleep apnea because no VA examiner has opined whether the Veteran’s sleep apnea is related to his service or is secondary to his service-connected PTSD. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. The examiner must provide an opinion regarding the following: a) Is it at least as likely as not that the Veteran suffers from sleep apnea that is related to an in-service injury, event, or disease? b) Is it at least as likely as not that the Veteran suffers from sleep apnea that is proximately due to his PTSD or is aggravated beyond its natural progression by his PTSD? A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.