Citation Nr: 21031693 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-04 339 DATE: May 24, 2021 ORDER Service connection for obstructive sleep apnea, as secondary to service connected traumatic brain injury (TBI), is granted. Prior to April 23, 2015, an increased (compensable) disability rating for service connected bilateral hearing loss is denied; for the increased rating period from April 23, 2015, an increased disability rating of 10 percent is granted. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea was caused by the service connected TBI. 2. Prior to April 23, 2015, the Veteran's bilateral hearing loss manifested as no more than level III hearing in the left ear and level III hearing in the right ear. 3. From April 23, 2015, the Veteran's bilateral hearing loss manifested as no more than level IV hearing in the left ear and level III hearing in the right ear. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for obstructive sleep apnea, as secondary to service connected TBI, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326. 2. Prior to April 23, 2015, the criteria for an increased (compensable) disability rating for service connected bilateral hearing loss have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100. 3. Resolving reasonable doubt in the Veteran's favor, from April 23, 2015, the criteria for an increased 10 percent disability rating, but no higher, for service connected bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1982 to December 1993. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the RO in Nashville, Tennessee, which denied both service connection for sleep apnea and an increased disability rating for the service connected bilateral hearing loss. The instant matter was previously before the Board in January 2018, where the issues on appeal were remanded for additional development. Review of the record reflects that all directed development was completed on remand, and the instant matter is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified from Indianapolis, Indiana, at an October 2017 Board videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for sleep apnea, no further discussion of the duties to notify and assist is necessary as to that issue. As to the hearing loss rating issue, concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and obtained adequate VA audiometric examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 1. Service Connection for Sleep Apnea Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). During the course of this appeal, the Veteran has argued that sleep apnea was caused by one or more service-connected disabilities. At the outset, the Board notes that the Veteran has a current diagnosis of obstructive sleep apnea. Such diagnosis can be found in the report from an August 2018 VA sleep apnea examination report. Next, having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether the currently diagnosed obstructive sleep apnea was caused by the service-connected TBI. In its January 2018 Remand, the Board remanded the sleep apnea issue on appeal to obtain an opinion concerning whether currently diagnosed obstructive sleep apnea was related to a service-connected disability. The Veteran received a VA sleep apnea examination in August 2018. Per the examination and opinion report, the VA physician examined the Veteran and reviewed the relevant evidence of record. At the conclusion of the examination, the VA examiner opined that it was at least as likely as not that the currently diagnosed obstructive sleep apnea was caused by the service-connected TBI. In the rationale section, the VA examiner provided a thorough review of the previous sleep study findings. The Board notes that the VA examiner did not explicitly state that the medical literature was reviewed in rending this opinion; however, the Board finds that the VA examiner did, in fact, consult the medical literature in rendering this opinion. Review of the record reflects that in September 2013, the Veteran submitted a medical article from the American Sleep Apnea Association. Per the article, their can be brain involvement in sleep apnea. Further, a cursory internet search reveals that there have been various medical studies published indicating higher levels of sleep apnea amongst those who have suffered a TBI as opposed to the general population. Subsequently, in March 2021, VA obtained a new secondary service connection opinion. Per the opinion report, the VA examiner found it less likely than not that the Veteran's TBI was the cause of the currently diagnosed obstructive sleep apnea. Specifically, the VA examiner found that the medical literature was not sufficient to find it at least as likely as not that the Veteran's sleep apnea was caused by the TBI. As discussed above, while the medical evidence is far from definitive, there is at least some medical literature supporting an association between sleep apnea and TBI; therefore, the Board does not find that this negative opinion outweighs the positive secondary service connection opinion rendered by a VA examiner in August 2018. Further, the wording of the opinion is unclear as to whether the VA examiner was considering the Veteran's unique facts and circumstances in this matter, as opposed to the general population. In sum, as both VA opinions appear to be adequate for VA rating purposes, it is not the Board's place to determine which VA examiner has correctly interpreted the medical literature, as both interpretations appear equally valid. Rather, the Board will find that the evidence is at least evenly balanced as to whether the Veteran's obstructive sleep apnea was caused by the service-connected TBI. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the criteria for service connection for obstructive sleep apnea, as secondary to service connected TBI, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Increased Disability Rating for Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has thoroughly reviewed all the evidence in the Veteran's claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing 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. In evaluating service connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, 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. See 38 C.F.R. § 4.86(b). Prior to April 23, 2015 The Veteran received a VA audiometric examination in October 2012. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 25 40 70 LEFT 25 25 40 95 Speech recognition scores conveyed speech discrimination of 80 percent in the right ear and 82 percent in the left ear. Based upon the results of the October 2012 examination, a Roman numeral III is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral III is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable (0 percent) rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection points for these categories show that the hearing loss did not exceed the levels for a noncompensable (0 percent) schedular rating at that time. The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the October 2012 audiometric examination did not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies for the Veteran's ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears were not shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. Review of all the evidence of record does not reflect any additional audiometric testing during the rating period prior to April 23, 2015. The application of the rating schedule to the audiometric findings weighs against an initial compensable disability rating for bilateral hearing loss at any point during the increased rating period prior to April 23, 2015. The weight of the competent and probative lay and medical evidence of record is against a compensable disability rating for bilateral hearing loss at any point during the increased rating period prior to April 23, 2015, and an increased disability rating for bilateral hearing loss during that period is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From April 23, 2015 The Veteran received a VA audiologic assessment in June 2019. While pure tone readings were not provided, it was reported that the Veteran had mild to profound sensorineural hearing loss bilaterally. Further, the Veteran had speech recognition scores of 76 percent in the right ear and 68 percent in the left ear. At the conclusion of the assessment, the VA audiologist noted that there was no significant change from the Veteran's last examination on April 23, 2015. A new VA audiometric examination was performed in December 2020. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 25 50 85 LEFT 30 25 30 95 Per the examination report, speech recognition scores showed speech discrimination of 96 percent in the right ear and 96 percent in the left ear. The Board notes that such high speech recognition scores conflict with the other lay and medical evidence of record, especially when considering that the Veteran has bilateral sensorineural hearing loss. As such, the Board has found it more appropriate to apply the speech discrimination scores noted in the June 2019 VA audiologic assessment report. Based upon the results of the December 2020 VA audiometric examination and June 2019 VA audiologic assessment, a Roman numeral III is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral IV is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection points for these categories show that the hearing loss did not exceed the levels for a 10 percent schedular rating at that time. The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the December 2020 VA audiometric examination and June 2019 VA audiologic assessment did not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies for the Veteran's ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears were not shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. Review of all the evidence of record does not reflect any additional audiometric testing during the rating period from April 23, 2015. The application of the rating schedule to the audiometric findings supports the grant of a 10 percent disability rating for bilateral hearing loss from at least December 2020; however, as discussed above, per the June 2019 VA audiologic assessment report, the symptoms shown at the time of the December 2020 VA audiometric examination had been present since testing was performed at a VA medical center on April 23, 2015. As such, the Board finds the weight of the competent and probative lay and medical evidence of record to support the grant of an increased 10 percent disability rating for bilateral hearing loss from April 23, 2015, the date the evidence of record first reflects that the Veteran's hearing loss symptoms had worsened to a compensable degree. For these reasons, the Board finds that an increased 10 percent disability rating, but no higher, is warranted for the service-connected bilateral hearing loss for the period from April 23, 2015. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. (Continued on the next page) Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the increased rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). Further, the Board also finds that the issue of a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) has not been raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.