Citation Nr: 21015650 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 10-02 675 DATE: March 18, 2021 THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a bilateral hearing loss disability. ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. Sleep apnea was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. The Veteran's bilateral hearing loss disability did not have onset during military service or within one year of discharge from service and is not shown to be related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304 (2020). 2. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1970 to January 1972, with service in the Republic of Vietnam from December 1970 to January 1972. The Veteran was awarded the Combat Infantryman Badge and Vietnam Service Medal with two service stars. This case comes before the Board of Veterans’ Appeals (the Board) from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran had a hearing before the undersigned Veterans’ Law Judge in June 2016. A transcript of that proceeding has been associated with the claims file. These matters, along with the issues of entitlement to service connection for a left elbow disability, left carpal tunnel syndrome, and tinnitus, were previously before the Board in October 2016 and August 2020 at which time they were remanded for further development. In a January 2021 rating decision, the RO granted entitlement to service connection for a left elbow disability, left carpal tunnel syndrome, and tinnitus, and those matters are, therefore, no longer before the Board. In its August 2020 decision, the Board remanded the matters in order to make one additional attempt to obtain medical records and to afford the Veteran new VA addendum opinions. Upon remand, the RO attempted to obtain said medical records and documented all negative responses, ultimately informing the Veteran and inviting him to submit the medical records should they be in his possession. See October 2020 Final Attempt Letter. Additionally, as described below, the Veteran was afforded new medical opinion for his claimed bilateral hearing loss and sleep apnea disabilities. Therefore, the Board finds that there has been substantial compliance with its remand directives, and the matters are once more before us. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or 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). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. A Veteran who, during active service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307, 3.309. Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C. § 1116 (b) (1); see 61 Fed. Reg. 41,368-41,371. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). If a Veteran was exposed to an herbicide agent during active service, the following diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for sleep apnea is denied. The Veteran is claiming service connection for sleep apnea to include as due to his presumed herbicide agent exposure. The Veteran's service treatment records are silent for any mention or treatment for sleep apnea during active service. El Paso Sleep Center treatment records reflect that the Veteran was first diagnosed with sleep apnea following a sleep study in April 2011, for which he began to receive treatment including a CPAP machine. Furthermore, the Veteran contends that he suffered breathing and respiratory issues, abnormal snoring, and fatigue during service. See September 2011 Claim. In its October 2016 decision, the Board found the Veteran had not been afforded a VA medical examination with opinion for his claimed sleep apnea. Therefore, the Board remanded the matter in order to afford the Veteran such an examination. In the June 2016 Board hearing, the Veteran testified that while he currently had a sleep disorder, he was not diagnosed with such a disability in service. The Veteran was afforded a VA examination for his sleep apnea in January 2020.While noting a diagnosis of sleep apnea, the examiner found the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner found no evidence of a diagnosis or complaints of sleep disturbances while in service. In a February 2020 addendum report the examiner indicated that there was no scientific evidence of an association between sleep apnea and exposure to herbicide agents and cited medical literature in support of her findings. In its June 2020 decision, the Board found that the January and February 2020 opinions were inadequate in that they did not address the Veteran’s reports of sleep disturbances while in service. Therefore, the Board remanded the matter in order to afford the Veteran an addendum opinion which explicitly addressed the Veteran’s complaints of sleep disturbances in service. The Veteran was afforded such a VA addendum opinion in December 2020. After a complete review of the case file, the examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by his conceded herbicide agent exposure in service. The examiner cited a lack of complaints of sleep disturbances in service treatment records, including November 1966 and February 1970 entrance examinations and April 1970 and January 1972 separation examinations. The examiner explained there was no evidence of “mental health concerns, diagnosis or treatment for mental health issues or sleep disorder/problems within the 12-month conceded period.” The examiner noted the Veteran was not treated for mental health concerns until 1995 and that he only began receiving services at the VA on or about 2002 for his health concerns. The examiner acknowledged that the veteran reported “nightmares, difficulty falling and staying asleep, and restlessness” since active duty service. However, the examiner explained that these symptoms were “subsumed under criterion E for PTSD” and are associated with his already service-connected psychiatric disability. Instead, the examiner noted that obstructive sleep apnea was a “sleep wake disorder” which required a specific diagnosis. The examiner concurred with the February 2020 medical opinion, stating that “current research does not elucidate an association between sleep apnea and agent orange.” Based upon the foregoing, the examiner stated that the Veteran’s sleep disturbance in service were symptoms of his service-connected psychiatric disability, and that his sleep apnea, a breathing disability, was not related to these symptoms. While the Board notes that the January and February 2020 medical opinions are inadequate for the purposes of determining the etiology of the Veteran’s sleep apnea for the reasons outlined above, the Board finds the December 2020 VA opinion to be of great probative value. Indeed, the examiner considered the Veteran's contention, the claims file, and clinical medical evidence before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner's negative opinion was supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). Additionally, the opinion complied with the July 2020 Board remand directives, as noted above. The Board acknowledges that the Veteran is competent to provide statements as to his beliefs that his sleep apnea is related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of such a condition of any kind. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his sleep apnea, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In addition, the Board finds that the gap in time between the Veteran's last date of active service, in January 1972, and the initial mention of sleep apnea in his treatment records in April 2011 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to service connection for sleep apnea is not warranted. The Board notes a current diagnosis of sleep apnea, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's post-service statements are noted. However, the service and private medical records are silent for any diagnosis of sleep apnea until April 2011, and there is no competent evidence to tie the current assertion to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Also, the Veteran is not entitled to presumptive service connection. Diseases associated with exposure to certain herbicide agents used in support of military operations in Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a) (1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a) (6) (ii). However, sleep apnea is not one of the enumerated diseases listed under this regulation. 38 C.F.R. § 3.309 (e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). Thus, although the Veteran has qualifying service in Vietnam, presumptive service connection for exposure to herbicide agents does not include sleep apnea, and as such, service connection for sleep apnea is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307 (a) (6), 3.309(e). In summary, the medical evidence in this case outweighs the Veteran's assertions that his current sleep apnea is of service origin to include conceded herbicide agent exposure. For these reasons, the preponderance of the evidence is against the claim and service connection for sleep apnea not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for a bilateral hearing loss disability is denied. As required under the first prong of Shedden, medical evidence of record indicates a current bilateral hearing loss disability. Medical diagnosis of hearing loss disability is measured with numerical criteria as defined by pertinent VA regulation. With respect to claims for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was afforded a VA examination in January 2020. The January 2020 VA audiology examination produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 55 60 65 LEFT 45 40 40 55 55 The Veteran's January 2020 VA examination also returned speech recognition scores of 94 percent for the right ear's Maryland CNC Test and 96 percent for the left ear's Maryland CNC Test. Given that the auditory threshold for the frequencies of 2000, 3000, and 4000 Hertz in the right ear measured 40 decibels or greater, and the auditory threshold for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear measured 40 decibels or greater, the Board finds that the Veteran has a current diagnosis of bilateral hearing of bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. As to the second prong of Shedden, in-service incurrence or aggravation of a disease or injury, the Board finds the Veteran to be a reliable historian of his experiences and noise exposure in service. See Jandreau, 492 F.3d at 1377. The Veteran asserts that he served in combat in Vietnam and that he was exposed to loud noises from gun fire, mortar explosions, and artillery shelling. See May 2009 Correspondence. The Veteran's DD-214 confirms the Veteran's engaged in combat and is consistent with noise exposure. Therefore, upon review of the Veteran's claims file, the Board considers the Veteran to be a reliable historian as to his in-service experiences, and concedes acoustic trauma in service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. Addressing the third prong of Shedden, nexus between the current disability and conceded in-service noise exposure, the Board considers the medical opinion and the lay testimonies provided in the record. Service treatment records are silent for complaints or a diagnosis of bilateral hearing loss. However, the entrance and exit examinations do reveal a threshold shift. The Veteran was first afforded a VA audiological examination in December 2005. The examiner found left ear hearing loss, but stated that the right ear was within normal limits. The Veteran described difficulty hearing over the telephone and stated that he was diagnosed with hearing loss some time after discharge from service. The examiner also noted that the Veteran worked as a mechanic and truck driver post-service. The examiner opined that the Veteran’s hearing loss was less likely than not incurred in or related to service. The examiner reasoned that the Veteran’s hearing loss was more likely a result of his post-service noise exposure, and that he had a lack of threshold shifts from entrance to separation in service. However, as observed by the October 2016 Board decision, the Veteran did experience threshold shifts while in service. The Board also found the December 2005 medical opinion was contrary to the Court’s holdings in Ledford v. Derwinski and Hensley v. Brown. See 3 Vet. App. 87, 89 (1992) and 5 Vet. App. 155, 159 (1993). Therefore, the Board remanded the matter in order to obtain a medical opinion which explicitly addressed the threshold shift in service. The Veteran testified in the June 2016 Board hearing that he first noticed his hearing loss five years prior, that he was not being treated for hearing loss, that he did not wear hearing aids, and that he was not diagnosed with a hearing loss disability at his previous audiological consult a few years prior. The Veteran was afforded a new VA examination in January 2020. The examiner found a current diagnosis of bilateral hearing loss for VA purposes, as noted above. The examiner opined that the Veteran’s bilateral hearing loss was less likely than as not that his hearing loss was related to military noise exposure, stating “there is no evidence to support a nexus to related his current hearing loss to military noise and not another etiology.” In the June 2020 decision, the Board found that the January 2020 VA audiological opinion did not comply with the October 2016 remand directives, as it did not address the threshold shift while in service and was conclusory and unsupported by adequate rationale. Therefore, the Board remanded the matter an additional time to afford the Veteran a new VA medical opinion. The Veteran was afforded such a VA medical opinion in December 2020. After a review of the claims file, the medical examiner opined that the Veteran’s current bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service noise exposure. The examiner explained that the Veteran’s entrance and exit examinations were both within normal limits. While the examiner acknowledged a threshold shift, he explained that the threshold shifts the Veteran experienced at the relevant frequencies were not indicative of noise-induced hearing loss. Rather, the examiner cited medical research and noted threshold shifts at higher frequencies were found to be associated with noise induced hearing loss, but that the Veteran’s threshold shifts were at lower frequencies. The examiner also cited medical literature which found that it was unlikely that the effects of hearing loss could be delayed several years after the cessation of exposure to acoustic trauma and also noted normal audiological findings in the right ear 33 years after separation from service. Finally, the examiner cited the presence of post-service occupational noise exposure as a more likely etiology for the Veteran’s current bilateral hearing loss. The December 2020 VA examiner noted his review of the Veteran's claims folder. The Veteran's allegation of military noise exposure having caused his current disability was specifically acknowledged, and his rationale was adequately supported by medical knowledge. Therefore, the examiner's opinion is entitled to probative weight as the examiner reviewed the history and provided an opinion supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (referring to the need for medical opinions to be supported by sufficient facts and data); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In determining the likelihood of a nexus between a current disability and an in-service injury, a VA medical examiner cannot rely solely on the fact that a claimant's hearing was within normal limits for VA purposes, or non-ratable under 38 C.F.R. § 3.385, at the time of his or her separation from service. See Hensley, 5 Vet. App. at 159. Here the December 2020 VA negative nexus opinion, does not rest solely on the fact that the Veteran's separation exam shows hearing results within normal limits. Significantly, the examiner also cited: 1) post-service noise exposure; and 2) no scientific basis for the existence of prolonged delay in the onset of hearing loss due to acoustic trauma, as determined by cited medical literature. In the present case, the Board can identify no basis in the record for finding that the examiner's opinion does not represent sound medical reasoning and accurate consideration of the record evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board thus concludes that a preponderance of the evidence establishes that the Veteran did not incur a chronic disease in service. While competent to report his past and current symptoms of hearing difficulty, the Veteran has presented no probative clinical evidence of a nexus between his bilateral hearing loss disability and military service. As a layperson, the Veteran is not competent to associate his currently diagnosed bilateral sensorineural hearing loss to acoustic trauma during service. Such opinion requires specific medical training. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a nexus between his bilateral hearing loss disability and his military service to be of no probative value. See Layno, 6 Vet. App. at 469-70 (1994); Jones, 7 Vet. App. at 137 (1994); see also 38 C.F.R. § 3.159 (a)(1) (2019). The Board has also considered whether service connection should be presumed based on a chronic disease or a continuity of symptomatology. See 38 C.F.R. § 3.303 (b) (2019). However, the service treatment records, including the separation examination, do not reflect that hearing loss was shown during service nor does the evidence reflect that the Veteran had sensorineural hearing loss to a compensable degree within one year of discharge from service. Instead, the first indication of hearing loss arises several years after separation from service. As the Veteran himself testified in the June 2016 Board hearing, he first noticed symptoms associated with hearing loss many decades after separation from service, well outside of service or the one-year period after separation. When the fact of chronicity in service is not adequately supported, service connection may be established by a showing of continuity of symptomatology after discharge. See 38 C.F.R. § 3.303 (b) (2019). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). As noted above, the Veteran has not made a contention of continuing symptomatology since service and testified that that he began noticing hearing loss several decades after separation. Thus, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.