Citation Nr: 21024031 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-11 371 DATE: April 21, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for obstructive sleep apnea, previously claimed as a respiratory disorder, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a bilateral hearing loss disability as defined by the applicable VA regulation. 2. The evidence is at least evenly balanced as to whether the Veteran’s current tinnitus is related to service. 3. The preponderance of the evidence is against a finding that the Veteran’s obstructive sleep apnea had its initial onset in service or is otherwise related to any in-service disease, injury, or event. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for obstructive sleep apnea, claimed as a respiratory disorder, have not been met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to October 1993. This case comes to the Board from multiple decisions of the Agency of Original Jurisdiction (AOJ), which denied the claimed benefits listed above. In April 2014, the Veteran testified before the undersigned at a Central Office hearing. A transcript of that hearing is of record. The Board remanded these issues, together with a separate claim for service-connected compensation for residuals of a traumatic brain injury (TBI), in May 2019. After further development, the AOJ granted the TBI claim in June 2020. Because that issue has been resolved in the Veteran’s favor, only the three issues listed above remain on appeal. Service Connection Establishing service connection requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and it is therefore considered a chronic disease. The United States Court of Appeals for Veterans Claims determined that tinnitus is also an organic disease of the nervous system for the purpose of 38 C.F.R. § 3.309. See Fountain v. McDonald, 27 Vet. App. 258, 260 (2015). Hearing Loss Without proof of a current disability, there can be no valid claim for service-connected compensation. See 38 U.S.C. § 1110, 1131; Boyer v. West, 210 F.3d 1351, 1363 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied if the claimed disability is present when the claim is filed or at any time while the claim is pending, even if the disability resolves before the final adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). According to 38 C.F.R. § 3.385, a Veteran has a hearing loss disability only if at least one of the following applies: 1) the auditory threshold is 40 or greater in one of the frequencies between 500 and 4000, inclusive; or 2) the threshold is 26 or more in three of those frequencies; or 3) the score of Veteran's the Maryland CNC speech recognition test is less than 94 percent. To help decide his claim, the AOJ arranged for an audiologist to examine the Veteran in May 2010. According to the examiner’s report, at that time, the Veteran’s auditory thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 10 LEFT 15 15 15 20 20 Maryland CNC speech discrimination test results were 100 percent in both ears. According to the examiner, these results “indicated normal hearing bilaterally.” The AOJ arranged another audiological examination in May 2013. The examiner’s report indicated the following auditory threshold test results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 5 LEFT 5 5 10 10 10 Speech discrimination test scores were 98 percent in the right ear and 100 percent in the left ear. The examiner indicated these results were valid for rating purposes and that the diagnosis was normal hearing in both ears. There was a third audiology examination in June 2015. Once again, the examiner’s report indicated a diagnosis of normal hearing in both ears. With respect to the right ear, the Veteran’s auditory threshold was 5 decibels at all of the frequencies between 500 and 4000 Hertz. As for the left ear, auditory thresholds were 5 decibels at 500, 1000, and 2000 Hertz. At both 3000 and 4000 Hertz, the thresholds were 10 decibels. Maryland CNC speech discrimination test results were 100 percent in both ears. The examiner wrote that the Veteran’s hearing was “still within normal limits for both ears.” In May 2019, the Board remanded this appeal with instructions to the AOJ to seek potentially relevant outstanding records from the Social Security Administration (SSA). The AOJ obtained records from the SSA in November 2019. But these records chiefly concern the effects of the Veteran’s anxiety, sleep apnea, and traumatic brain injury. The SSA records do not include any significant information about the Veteran’s claimed hearing loss disability. The Veteran has suggested that his claim should be granted because of his participation in a series of experiments called the blast overpressure study. He has submitted reports describing the study as attempts “to define the safe limits (auditory and nonauditory) for exposure to weapons noise [which was] conducted at the Blast Overpressure Test Site, Kirtland Air Force Base.” The studies were “based on the concept that exposure to impulses produced by exploding C4 charges of differing weights and calibers would simulate exposures to generic large-caliber weapons use by the U.S. Army.” Human test subjects used earmuffs during the blasts. The Veteran has submitted leave and earnings statements indicating that, during his active duty service, he was stationed at Kirtland Air Force Base and a letter to him from the Army Medical Research and Material Command, which identifies him as a participant in these studies. As the Board explained in its March 2015 remand, this evidence demonstrated that, during his active duty service, the Veteran was exposed “to acoustic trauma and explosions.” None of the subsequently obtained evidence is inconsistent with this preliminary finding. Accordingly, the evidence of the Veteran’s participation in the blast overpressure study satisfies the in-service injury requirement of his hearing loss claim. Unfortunately for the Veteran, there is no competent evidence suggesting that he has satisfied the regulatory criteria for a hearing loss disability at any point during the relevant appeal period. With respect to the current disability requirement, the most persuasive items of evidence are the test results provided by the VA examining audiologists. Although there was some variation in the Veteran’s auditory thresholds, the results consistently indicated normal hearing. Thus, the preponderance of the evidence is against a finding that the Veteran met the criteria for a hearing loss disability under 38 C.F.R. § 3.385 at any point during the relevant appeal period. The appellant has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for benefits. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Because the preponderance of the evidence is against a finding that the Veteran has a hearing loss disability, the benefit of the doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim for service connection must be denied. Tinnitus The Veteran’s arguments concerning his tinnitus claim are very similar to those he submitted in support of his hearing loss claim. With respect to both claimed disabilities, he suggests that his participation in the blast overpressure study caused him to develop the relevant symptoms. But different outcomes are appropriate mainly because, unlike hearing loss, which for VA compensation purposes depends on the results of a series of technical test results, a layperson is competent to identify tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). In his initial application for benefits, the Veteran indicated that he first experienced tinnitus in 1990, during his active duty service. During the June 2010 audiology examination, the Veteran reported “constant bilateral tinnitus” but he “was unable to say when the tinnitus started and how long it had been occurring.” The examiner wrote that there “is no audiological basis for the tinnitus complaint.” The May 2013 report indicates that the Veteran reported experiencing tinnitus since the 1990s. The examiner’s unfavorable opinion addressed the issue of whether tinnitus was related to the Veteran’s claimed hearing loss. Unfortunately, the examiner failed to address the legally relevant question of whether tinnitus, whatever its cause, had its initial onset in service or was related to any in-service injury or event, such as the blast pressure experiments. The Veteran also discussed tinnitus in his hearing testimony. He said that, during the blast experiments, “after every – every one of those blasts I experienced the ringing in the ear sensation.” He also said that his tinnitus subsided, but then returned later. According to the June 2015 examination report, the Veteran reported “constant tinnitus in both ears that is perceived like a ‘humming’ sound. He cannot recall an exact event/episode that might have contributed to the onset of tinnitus.” In the examiner’s opinion, it was less likely than not that the Veteran’s tinnitus was related to service. To explain this opinion, the examiner emphasized that the Veteran’s service treatment records did not mention tinnitus and that in-service hearing test results were normal. Tinnitus, the examiner wrote, “has many other causes not related to hearing [loss] and it is up to [the AOJ] to determine if further evaluation of this complaint by another discipline is needed.” Because aspects of the June 2015 opinion were inconclusive, particularly the suggestion that there were other unexplained potential causes of the Veteran’s tinnitus, the Board remanded the tinnitus claim for a new opinion in May 2019. The AOJ obtained the most recent opinion in December 2019. Like the earlier examiners, the audiologist who prepared this report reached an unfavorable conclusion. Her opinion emphasized the absence of an in-service diagnosis of tinnitus and a statement from the Veteran to the June 2015 examiner indicating that the onset of tinnitus occurred approximately 10 years earlier. The examiner reasoned that, because more than 20 years separate the 2015 examination from the conclusion of the Veteran’s active duty service, then the Veteran’s tinnitus must not have started until many years after his discharge from the Army. The Board finds that the unfavorable opinions are inadequate to support a decision denying service connection for tinnitus. The most obvious weakness of the most recent report is that the June 2015 audiology questionnaire does not actually record a statement from the Veteran indicating an onset of tinnitus 10 years earlier. Instead, the “medical history” section of the 2015 tinnitus questionnaire indicates that the Veteran could not identify a specific event causing tinnitus. Thus, the December 2019 opinion is based on an inaccurate factual premise. Cf. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Moreover, it is not surprising that the service treatment records do not mention tinnitus. As the AOJ concluded in an April 2010 memorandum, the available service treatment records do not include the usual separation examination report. But “even if a medical opinion is inadequate to decide a claim, it does not follow that the opinion is entitled to absolutely no probative weight.” Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). When considered together with the Veteran’s statements, the December 2019 and the June 2015 opinions provide enough information to grant the tinnitus claim. As noted, although the December 2019 opinion was wrong to suggest that the Veteran identified a specific post-service date of onset for his tinnitus symptoms, the June 2015 report’s statement that the Veteran could not identify a specific precipitating event for his tinnitus might be construed as inconsistent with his earlier hearing testimony linking the onset of tinnitus to the blast experiments. But the Veteran’s service-connected TBI is associated with symptoms of memory loss. Memory loss or other cognitive impairment due to service-connected residuals of TBI could potentially explain this apparently inconsistent account of whether he could recall a link between tinnitus and a specific event. The Board is required to resolve reasonable doubt in the Veteran’s favor. Moreover, by suggesting that a statement from the Veteran fixing the date of onset of tinnitus symptoms in approximately 2005 would be enough to support an unfavorable opinion, the December 2019 implicitly acknowledged that, if accepted as true, the Veteran’s hearing testimony indicating a date of onset in the early 1990s would be enough to support a favorable opinion. By suggesting the existence of multiple potential causes of tinnitus unrelated to hearing loss, the June 2015 opinion implicated indicated that the blast overpressure experiments might have caused tinnitus in service. Under these circumstances, the evidence is at least evenly balanced that the Veteran’s current tinnitus had its initial onset during his active duty service. By law, the doubt resulting from this equipoise in the evidence is resolved in the appellant’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only ‘an approximate balance of positive and negative evidence’. . . , the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). Thus, the Board will grant service connection for tinnitus. Sleep Apnea The Veteran has been diagnosed with obstructive sleep apnea. According to a January 2011 examination report, the initial date of onset was approximately 2009. This diagnosis satisfies the current disability requirement of the claim. Like the other claimed disabilities in this appeal, the Veteran attributes his post-service sleep apnea to his participation in the blast experiments during active duty. In his hearing testimony, the Veteran described what he believed to be the findings of the blast overpressure study. According to him, the reports he submitted determined that a link existed between sleep apnea and exposure to the blasts. The Board has read the materials submitted by the Veteran. Contrary to his testimony, these materials do not suggest that study participants tended to develop sleep apnea. Indeed, none of the publications on the study submitted by the Veteran seem to mention sleep apnea at all. To the extent he believes that these publications support a causal nexus between the experiments and his sleep apnea, it appears that the Veteran has misunderstood them. Nevertheless, the Veteran’s statements and the evidence that he participated in the blast experiments satisfied the standard for obtaining a medical opinion. The Board remanded the sleep apnea claim for that purpose in May 2019. After reviewing the evidence, a VA examiner prepared an opinion in December 2019, which concluded that a relationship between active duty service and sleep apnea was less likely than not. The opinion also addressed the possibility that sleep apnea might be an appropriate subject for applying the presumptions of service connection for Persian Gulf Veterans pursuant to 38 C.F.R. § 3.317. According to the examiner, the Veteran’s sleep apnea was not an undiagnosed illness or other qualifying chronic disability for the purpose of the regulation because it had a known clinical diagnosis. The examiner also observed that the service treatment records did not mention any sleep disorder and noted the lengthy interval between the Veteran’s discharge from active duty service in 1993 and the onset of sleep apnea symptoms more than ten years later. The examiner identified obesity as the most likely cause of the Veteran’s sleep apnea. On the issue of whether a causal connection exists between sleep apnea and service, the Board finds that the most persuasive evidence is the December 2019 medical opinion. The examiner’s opinion was based on a review of the relevant medical records and by identifying an alternative, more likely, cause of the Veteran’s current sleep apnea (obesity), the examiner provided a reasonable explanation for rejecting the claimed relationship between sleep apnea and the in-service blast experiments. Although obesity is not considered a disability for which compensation may be granted, VA’s General Counsel has concluded that, under certain circumstances, obesity may be an intermediate step between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310. For example, according to the General Counsel, some veterans could potentially be eligible for service connection for hypertension on a secondary basis if a service-connected back disability causes obesity due to lack of exercise, which then leads to hypertension. VAOPGCPREC 1-2017, at 9. But the facts of this particular case are inconsistent with this theory. According to the January 2011 Gulf War examination report, the Veteran had already experienced a significant weight gain between service and the time of the examination: “He says his weight was 135 [pounds] when he entered the military and is 245 [pounds] now.” But the same report indicates that, at that time, the Veteran was still participating in regular exercise, including karate and weight-lifting. Since the Veteran had already gained weight and developed sleep apnea, it is clear that his obesity and related sleep apnea were not the result of any reduction in exercise associated with a separate service-connected disability. Under these circumstances, the theory of obesity as an intermediate step pursuant to the General Counsel’s opinion clearly does not apply and, therefore, there was no need for the December 2019 opinion to address the theory. Significantly, the Veteran has not himself suggested that his obesity was caused by a service-connected disability. Consistent with this analysis, the Board adopts the December 2019 opinion and finds that it is less likely than not that the Veteran’s sleep apnea is related to any in-service disease, injury, or event, including his participation in the blast experiments and his service in the Persian Gulf. The Board has considered the Veteran’s statements and hearing testimony. Unlike tinnitus, however, sleep apnea is not a disorder which an ordinary layperson can identify. In his statements to the January 2011 examiner, he identified 2009 as the initial date of onset for sleep apnea. 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) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). These statements are consistent with the December 2019 opinion. Moreover, as noted by the examiner, the Persian Gulf presumption of 38 C.F.R. § 3.317 does not apply because the Veteran’s sleep disorder has been attributed to a known clinical diagnosis. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim for service connection for sleep apnea must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.