Citation Nr: 21013117 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-59 371 DATE: March 8, 2021 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for a sleep apnea condition, and the claim is reopened. Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for chronic cervical spine disability to include as to secondary to the service-connected low back disability, and/or service-connected amyotrophic lateral sclerosis (ALS) is remanded. FINDINGS OF FACT 1. An April 2009 rating decision denied service connection for sleep apnea; the Veteran did not timely appeal the denial; and new and material evidence was not received as to the issue within the one-year appeal period following issuance of the April 2009 rating decision. 2. Evidence received since the April 2009 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for sleep apnea. 3. The Veteran’s service-connected bilateral hearing loss has been no worse than a Level I impairment of each ear. CONCLUSIONS OF LAW 1. The April 2009 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. § 3.303. 3. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1970 to February 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. 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). Reopening Issues In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously considered by VA. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for sleep apnea The Veteran submitted an original claim for entitlement to service connection for sleep apnea in February 2009. See February 2009 Statement in Support of claim. In the April 2009 rating decision, the RO denied the Veteran entitlement to service connection for sleep apnea. The RO explained that there was no evidence to indicate that the Veteran’s sleep apnea occurred in or was caused by service. The RO notified the Veteran of the decision in a letter dated in April 2009. The notification letter explained to the Veteran his right to appeal the denial. The Veteran did not submit a timely notice of disagreement or new and material evidence as to the denial within the one-year appeal period. As such, the Veteran did not timely appeal the April 2009 rating decision’s denial of entitlement to service connection for sleep apnea. See 38 C.F.R. §§ 3.156(b), 20.201, 20.302. The April 2009 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidence associated with the record since the final April 2009 rating decision includes a sleep study, multiple witness statements, a July 2017 VA examination, a July 2017 addendum opinion, October 2017 medical opinion, July 2019 VA examination, and VA treatment records. This evidence is new in that it was not previously considered by VA. It is also material because the evidence together relates to an unestablished fact necessary to substantiate the claim. See Shade, 24 Vet. App. at 118. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for sleep apnea, therefore the claim is reopened. 38 C.F.R. § 3.156(a). Increased Rating Entitlement to a compensable rating for bilateral hearing loss The Veteran currently receives a noncompensable rating for service-connected bilateral hearing loss. He contends that he has to ask people to repeat themselves when he has conversations, and wears hearing aids. The applicable rating period is from May 26, 2015, one year prior to the receipt of the claim, through the present. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (discussing the one-year “look-back” period for non-initial increased rating claims). The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R.§ 4.85(a). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. If the use of the word recognition score is not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate, the use of Table VIa is warranted. The Veteran was afforded a VA examination in August 2016. The examiner noted that the Veteran has bilateral sensorineural hearing loss. Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 30 55 70 42.5 LEFT 10 25 60 65 40 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 in the left ear. The Board has considered the provisions of 38 C.F.R. § 4.86, which address exceptional patterns of hearing impairment, but the Veteran’s puretone thresholds during the appeal period summarized above do not conform to criteria listed in this regulation. The Veteran’s service treatment records do not show treatment of or diagnosis of bilateral hearing loss. The Veteran’s post-service medical records noted bilateral hearing loss due to acoustic trauma and tinnitus. In March 2020 the Veteran testified at a Board hearing that he currently wears hearing aids. The Veteran testified that people have to repeat themselves when he has conversations, but he can use the phone because he turns it on speaker so he can hear it. He also has a new phone that will capture what people say and it puts the writing in front of him like subtitles. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Veteran has argued that his hearing loss is more severe than was reflected by his assigned evaluations. Although the Veteran is competent to attest to his observations and laypeople may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, the Veteran is competent to describe observable symptoms and impairments he experiences (e.g., diminished hearing and the use of hearing aids). However, as a lay person, he is unable to provide competent evidence as to the audiometry or measured level of his hearing loss to support a higher disability rating. The Board acknowledges the Veteran’s complaints regarding the impact of his service-connected bilateral hearing loss on his daily activities. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are made. The Board also notes that the rating criteria do not provide for a compensable rating based on the use of hearing aids. There is no doubt as to the proper evaluations to assign, and thus no doubt to resolve in favor of the claimant. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, VII, DC 6100. The Board is bound by applicable laws and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Consideration of factors wholly outside the schedular rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In conclusion, the preponderance of the most probative evidence weighs against entitlement to a compensable rating for bilateral 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 does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea disability had its onset during his active military service. The Veteran submitted statements from his spouse and multiple witness statements that say that the Veteran snored loudly during service and the snoring was followed by a gasp for air. One of the witness statements also noted that the Veteran was a restless sleeper, and was always tossing and turning, with frequent trips to the bathroom. See August 2017 Statement in Support of Claim. The Veteran’s spouse stated that he has always been a snorer, restless, and a light sleeper. She indicated that in August 2004 the Veteran was diagnosed with diabetes and some of the symptoms are similar to sleep apnea such as the fatigue, irritability, and restlessness. In July 2019, the Veteran underwent a VA examination for his amyotrophic lateral sclerosis (ALS) condition. The examiner checked the box that the Veteran has signs and or symptoms of sleep apnea or sleep apnea like condition attributable to ALS, and that the Veteran requires the use of a CPAP machine. The Veteran became service connected for ALS in the October 2019 rating decision, with an effective date of August 1, 2019. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a sleep apnea disability without obtaining an addendum opinion. The addendum opinion must address the relationship between the Veteran’s claim for service connection for his sleep apnea and the service-connected ALS disability. 2. Entitlement to service connection for chronic cervical spine disability to include as to secondary to the service-connected low back disability, and/or service-connected amyotrophic lateral sclerosis (ALS) is remanded. The Veteran contends that his chronic cervical spine disability is due to his active service. In the alternative the Veteran contends that his chronic spine disability is secondary to his service-connected low back disability, or ALS. The Veteran’s service treatment records show that in 1973 and 1974 the Veteran received treatment for a stiff and sore neck. In March 1974, the Veteran had a c-pine x-ray that showed straightening of C-spine secondary to spasm. In June 1987, the Veteran had unresolved neck strain, secondary to mechanical strain. The Veteran’s November 1997 separation examination did not indicate neck pain or a neck condition. In September 2016, the Veteran underwent a VA examination for his chronic cervical disability. The examiner noted that the Veteran was diagnosed in 2016 with degenerative arthritis of the spine and in 2005 spinal fusion. The examiner opined that the Veteran’s cervical condition is less likely proximately due to or the result of the service-connected spondylosis deformans [low back condition]. As to the rationale, the examiner explained that there was insufficient evidence within the record to support the Veteran’s claim. In July 2017, the Veteran underwent a VA examination for his chronic cervical spine disability. The examiner noted that the Veteran was diagnosed with degenerative arthritis of the spine and spinal fusion with disc spacer placement. The examiner opined that the Veteran’s neck condition is less likely than not (50 percent or greater probability) incurred in or caused by the neck pain/stiffness during service as seen in his service treatment records. As to the rationale, the examiner stated that prior to providing an opinion he thoroughly reviewed the Veteran’s C-file and current peer reviewed medical literature. The examiner explained that the Veteran had two apparent episodes of muscular strain or neck spasms when he was in active service. However, these conditions resolved, as they were not noted in the Veteran’s retirement examination. In addition, the examiner states that DDD is likely age related. The examiner stated it is opined that the Veteran’s current neck condition is likely related to activities after service and the age of the Veteran. The examiner opined that the Veteran’s current neck condition is less likely as not (50 percent or greater probability) due to or the result of his service-connected lumbar spondylosis degenerative disc disease. As to the rationale, the examiner explained that it is not biomechanically possible for the lower back condition to cause the Veteran’s current neck condition. The examiner opined that the Veteran’s neck condition is less likely as not aggravated beyond its natural progression by his service-connected lumbar spondylosis degenerative disc disease. As to the rationale, the examiner explained, that it is not biomechanically possible for the lower back condition to aggravate the Veteran’s current neck condition. In March 2020 the Veteran testified at a Board hearing. The Veteran testified that as an engineer he went up and down ladders all the time, and it bothered his back, but he never said anything about it. He testified that he did get his back checked a few times, and he was told he had a curvature of the spine. The Veteran recently found out that he has ALS. The Veteran testified that he believes his ALS contributed to the development of his neck problems. The Veteran testified that he cannot stand up for more than five minutes and cannot lift five pounds. The Veteran testified that he received treatment during service, and once he was out of service as well, around 1999 or 2000, this included physical therapy from Mililani Physical Therapy, a private facility, but it did not help. The Veteran had surgery on his neck in May 2016. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a cervical spine disability without obtaining an addendum opinion addressing the lay testimony, and regarding the Veteran’s contention that he received treatment within a year after service. The Board notes, that there are no records from a Mililani Physical Therapy facility within the records, that the Veteran identified during the March 2020 Board hearing. No examiner has opined whether the Veteran’s cervical neck condition manifested to a compensable degree within a year of service. In addition, no examiner has opined whether the Veteran’s cervical spine disability is secondary to the Veteran’s service-connected ALS. Thus, a remand is necessary to obtain an addendum opinion to determine if there is a basis to grant service connection for the Veteran’s cervical neck disability. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records including but not limited to Mililani Physical Therapy. 3. Then, obtain an addendum opinion from an appropriate medical professional who has the requisite experience to render the requested medical opinions. The examiner must specifically note on the report whether such files were reviewed in connection with these addendum opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. 4. The examiner should then address the following: (a.) Is at least as likely as not (50 percent or greater probability) that the Veteran’s chronic cervical spine disorder is related to any in-service injury, event, or disease? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s chronic cervical spine disorder had its clinical onset during active service or manifested to a compensable degree within one year of separation from active service? The examiner should consider that the Veteran contends that he received physical therapy for his cervical spine condition within a year of service. (c.) Is it as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability is at least as likely as not (50 percent or greater probability) (1) proximately due to his ALS condition (2) aggravated beyond its natural progression by his ALS condition. (d.) Is it as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea disability is at least as likely as not (50 percent or greater probability) (1) proximately due to his ALS condition (2) aggravated beyond its natural progression by his ALS condition. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not “caused by,” “a result of,” or “secondary to” another disability does not answer the question of aggravation and will necessitate a further opinion 5. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 6. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). (Continued on the next page)   7. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, Associate 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.