Citation Nr: 21014545 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-06 910 DATE: March 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. Entitlement to a compensable initial rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s OSA was not first manifested on active duty, is not otherwise shown to be the result of active service, or to be related to a service-connected disability. 2. The Veteran’s bilateral hearing loss is manifested by no greater than Level I hearing loss in the right ear and Level I hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for OSA, to include as secondary to service-connected PTSD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to a compensable initial rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Navy from April 1971 to June 1979. He also had active duty service from June 1979 to February 1988 that was administratively found to be under other than honorable conditions; therefore, VA benefits cannot be awarded for the Veteran’s second period of service. 38U.S.C. §101(18); 38C.F.R. §3.12. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a September 2013 and August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  These duties have been satisfied in this case.  Appropriate notice was provided in December 2011.  The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file.  No other relevant records have been identified and are outstanding.  Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Such includes the examinations ordered in the June 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, VA has satisfied its duty to assist.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2018). Moreover, the United States Court of Appeals for Veterans Claims (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran contends that his OSA is related to his service or service-connected PTSD. Service treatment records (STRs) were silent for any treatment, complaints, or diagnosis of OSA. Post service treatment records demonstrated that the Veteran was diagnosed and treated for OSA. In July 2014, the Veteran was afforded a VA examination. He was diagnosed with OSA with an onset date of 2012. He reported that he had difficulty sleeping at night and used a sleep apnea machine. The examiner opined that the Veteran’s sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran’s file was reviewed. He noted that the Veteran’s sleep apnea was not due to any potential asbestos exposure. He indicated that asbestos exposure had not been showed to be a cause of OSA. On December 2016 sleep apnea disability benefits questionnaire (DBQ), the Veteran was diagnosed with OSA with an onset date of 2012. The Veteran was diagnosed with OSA after complaints of witnessed apneas, daytime fatigue, loud snoring, and frequent night-time awakening. After a review of the medical records and interview of the Veteran, the examiner opined that the Veteran’s OSA was caused and permanently aggravated by his PTSD. The examiner noted that a September 2016 psychiatric evaluation showed a diagnosis of PTSD. The examiner indicated that the Veteran endorsed poor sleep at night despite compliance with using his CPAP machine for OSA. The Veteran was unable to tolerate it due to it making him feel anxious and uncomfortable. This led to daytime somnolence, irritability, decreased focus, the need to nap, and exacerbation of his PTSD impairments. The Veteran reported that when his PTSD was exacerbated, he experienced a higher incidence of sleep disturbances. The examiner noted that research showed that psychological disorders were commonly associated with OSA. A recent study found that subjects with PTSD compared with non-PTSD had a higher prevalence of OSA diagnosis. Another study found that with CPAP, both OSA and psychological symptoms decreased, thus providing further evidence of the co-morbidity of these conditions. On December 2017 letter, Dr. MB indicated that she stated the Veteran had a diagnosis of depressive disorder. The statement should have read, “(“I feel it is as likely as not that his PTSD aided in the development of OSA and has permanently aggravated his OSA”). In August 2018, the Veteran was afforded a VA examination. The examiner opined that the Veteran’s OSA was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner noted that the claims file was reviewed. He indicated that there was no objective evidence OSA was due to or the result of PTSD. There was no objective evidence in the medical literature establishing a direct cause and effect relationship between PTSD and OSA. The VA examiner opined that the Veteran’s OSA was at least as likely as not aggravated beyond its natural progression by PTSD, but then contradictorily stated, “there was no objective evidence, no complaints, no treatment, no diagnosed aggravation of the claimed OSA beyond its natural progression by his service-connected PTSD.” The examiner noted that he could not establish a baseline severity for OSA. In February 2020, a VA addendum opinion was obtained. The examiner opined that the Veteran’s OSA was not related to his military service. He noted that the medical records were silent for OSA until 2012. The Veteran was diagnosed 24 years after his military service. Further, he opined that the Veteran’s OSA was not related to his service-connected PTSD. The examiner noted that current literature showed that OSA and PTSD had two different pathogenesis/etiologies, which were not related to each other and did not cause each other. PTSD was not a pathogenic factor for sleep apnea. In June 2020, a VA addendum opinion was obtained. The examiner noted that the Veteran’s file was reviewed. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner explained that OSA by definition was secondary to obstruction of the upper airways. Therefore, by definition, it could not be at least 50 percent or more due to a mental condition such as PTSD. She noted that PTSD could not cause an obstruction of the upper airways. She noted that the medical evidence was not sufficient to support the determination of a baseline level of severity. She opined that the Veteran’s OSA was less likely than not aggravated beyond its natural progression by his PTSD. The condition had only been aggravated by the Veteran’s discomfort with wearing the nasal CPAP secondary to discomfort. The Board finds that the July 2014, February 2020, and June 2020 VA opinions findings no nexus between the Veteran’s current OSA and his active service and service-connected PTSD are the most probative evidence of record, as the examiners reviewed the claims file and provided a detailed rationale based on the evidence of record, to include medical findings and lay observations. The Board notes Dr. MB December 2016 and 2017 opinion indicated that the Veteran’s OSA was related to his service-connected PTSD. However, there was not any rationale on how the medical opinion was formed. At best, Dr. MB simply observed comorbidity. Therefore, the private opinions have less probative value compared to the July 2014 and June 2020 opinions. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making a definitive clinical determination of the nature and etiology of the Veteran’s OSA disability. See Kahuna v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe that he experiences OSA, he is not able to provide competent evidence as to the etiology of his condition. The preponderance of the evidence is against the claim of service connection for OSA, and the claim must be denied. Initial Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Under the applicable criteria, ratings for bilateral hearing loss are determined in accordance with the findings reported at 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, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from bilateral hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. The regulations include special provisions for evaluating exceptional patterns of hearing impairment: (a) When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. (b) When the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. In August 2013, the Veteran was afforded a VA examination. HERTZ 500 1000 2000 3000 4000 Average Right 10 20 25 50 60 39 Left 10 10 20 45 45 30 The average decibel loss in the left ear was 40 and for the right ear 39. Speech recognition scores were 94 percent in the right ear and 92 percent in the left ear. The examiner opined the Veteran’s hearing loss did not impact ordinary conditions of daily life, including the ability to work. These findings correspond to Level I hearing in each ear, which in turn corresponds to a 0 percent (noncompensable) disability rating. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. In November 2020, the Veteran was afforded a VA examination. HERTZ 500 1000 2000 3000 4000 Average Right 10 20 25 50 60 39 Left 10 20 25 50 55 38 The average decibel loss in the left ear was 38 and for the right ear 39. Speech recognition scores were 96 percent in the right ear and 96 percent in the left ear. The Veteran reported that he was not able to hear his wife or kids. He noted that he was not able to hear the TV and had to use closed captioning. The examiner opined that the Veteran’s hearing loss impacted ordinary conditions of daily life including the ability to work. These findings correspond to Level I hearing in each ear, which in turn corresponds to a 0 percent (noncompensable) disability rating. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. VA treatment records demonstrated that the Veteran complained of his hearing loss. The Board has considered the Veteran’s lay statements, in which he generally contends that his hearing is worse than currently rated and does not doubt that he experiences a degree of decreased hearing. However, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of the August 2013 and November 2020 audiological examinations, which shows that the Veteran’s hearing loss does not rise to the level of a compensable initial rating. For these reasons, the Veteran’s claim for a compensable initial rating for bilateral hearing loss is denied. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.