Citation Nr: 21040936 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-44 315 DATE: July 7, 2021 ORDER Service connection for sleep apnea is denied. Service connection for a pulmonary disorder, to include asbestosis is denied. Entitlement to a compensable rating for bilateral hearing loss prior to September 1, 2020, is denied. Entitlement to a rating higher than 20 percent for bilateral hearing loss since September 1, 2020, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's sleep apnea was incurred in or aggravated by active service. 2. The preponderance of the evidence is against finding that a pulmonary disorder, to include asbestosis was incurred in or aggravated by active service. 3. Prior to September 1, 2020, the Veteran's hearing loss is productive of no more than level II hearing acuity for the left ear and level I for the right ear. 4. Since September 1, 2020 the Veteran demonstrated at worst, level V sensorineural hearing loss in the right ear, and level V in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303, 3.309. 2. The criteria for entitlement to service connection for a pulmonary disorder, to include asbestosis have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303, 3.309. 3. Prior to September 1, 2020, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code 6100. 4. Since September 1, 2020, the criteria for an increased disability evaluation in excess of 20 percent for bilateral hearing loss disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1961 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran presented sworn testimony at a hearing before the undersigned. In March 2019, the Board remanded the issues of entitlement to an initial compensable rating for bilateral hearing loss; entitlement to service connection for a psychiatric disorder, sleep apnea, and a pulmonary disorder; and entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) for further development. While on remand, in a September 2020 rating decision, the RO increased the rating for the Veteran's bilateral hearing loss to 20 percent, effective September 1, 2020. Subsequently, in a March 2021 rating decision, the RO denied entitlement to a TDIU, and granted entitlement to service connection for unspecified trauma and stressor-related disorder (claimed as PTSD) with an evaluation of 30 percent effective June 13, 2016. The grant of service connection for an unspecified trauma and stressor-related disorder is considered full grants in benefits, thus this issue is no longer before the Board under the Legacy system. In May 2021, the Veteran selected the modernized review system by submitting a timely "Decision Review Request: Board Appeal (Notice of Disagreement)" form (VA Form 10182), requesting the hearing lane under the modernized system for the claims of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities, thus identifying the most recent rating decision as the initial decision on appeal, and for the claim of entitlement to a rating higher than 30 percent for his psychiatric disorder. 38 C.F.R. § 19.2(b). As such, these issues are not for consideration in the Legacy system and a separate decision addressing these matters will be issued under a separate docket number pursuant to the modernized review system. SERVICE CONNECTION Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active duty service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases 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, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b) applies only to chronic disease as listed in 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The law in this area significantly changed following Procopio v. Wilkie, 913 F.3d 1371, 1381 (Fed. Cir. 2019) (en banc), which overruled earlier precedent and held that veterans of the Vietnam era who served within the 12-nautical-mile limit of Vietnam's territorial sea are entitled to a presumption of exposure to herbicides such as Agent Orange. Following Procopio, Congress enacted, and the President signed, the Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966 ("the Act")). The Act further clarified "presumptions relating to the exposure of certain veterans who served in the vicinity of the Republic of Vietnam." Procopio v. Secretary of Veterans Affairs, 943 F.3d 1376, 1378 (Fed. Cir. 2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for sleep apnea. The Veteran seeks service connection for sleep apnea, which he states is related to service. The Board finds that service connection for sleep apnea is not warranted. As stated above, establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Based on a careful review of the medical treatment records, the Board finds that service treatment records are silent for complaints or diagnoses of a sleep apnea disorder during service. The Veteran was diagnosed with obstructive sleep apnea in February 2018, about 51 years after active duty service. The Veteran presented sworn testimony at the February 2019 Board hearing. At that time the Veteran explained that he had problems snoring while in service, which he states is evidence of a sleep disorder at that time. See Board Transcript, page 29. VA treatment records do not show a sleep apnea condition related to service. The Veteran was afforded a VA examination in December 2020 pursuant to his claim of entitlement to service connection for sleep apnea. The examiner noted that the Veteran is has a BMI of 42, and that a BMI of greater than 40 is considered morbidly obese. The examiner then explained that obesity greatly increases the risk of sleep apnea and is the primary cause of sleep apnea. After examination and review of the record, the examiner remarked that the Veteran has progressively gained weight since service. The examiner noted that the Veteran is diagnosed with obstructive sleep apnea, the most common type of sleep apnea, and explained that this occurs when the muscles in the back of the throat and tongue relax, airway narrows or closes and can't get enough air. The brain senses inability to breathe and briefly rouses the person from sleep so that it can reopen the airway. This pattern can repeat itself several times an hour, impairing the ability to reach deep restful sleep. The examiner stated that obesity greatly increases the risk of sleep apnea, and identified morbid obesity, age, and being male as the most likely contributors to the Veteran's sleep apnea disorder, opinion that the Veteran's sleep apnea less likely than not had its onset or is otherwise related to his active duty service or aggravated by his service-connected disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not possess the medical knowledge to attribute a sleep apnea disorder to his military service or a service-connected disability. Therefore, the Veteran's statement that he has a sleep apnea disorder related to service is not competent and therefore not probative. As there is no competent evidence, lay or otherwise, showing that the Veteran has a sleep disorder aggravated by service or evidence showing an in-service event or injury that could cause such disability, the preponderance of the evidence is against the Veteran's claim and there is no doubt to be resolved. Therefore, service connection for a sleep apnea disorder is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a pulmonary disorder, to include asbestosis. The Veteran seeks service connection for pulmonary disorder, to include asbestosis, which he states is related to service. The Board finds that service connection for pulmonary disorder, to include asbestosis, is not warranted. In January 2020, the Veteran was provided a VA examination in regard to his claim. The VA examiner opined that there was no evidence of a lung disorder. Although the Veteran showed a negative PFT, the examiner explained that the technique used to conduct the PFT was questionable. Imaging studies did not reveal pulmonary disease. The Veteran's lungs were clear with no evidence for infiltrate, pulmonary edema, or pleural effusion. His mediastinal and hilar contours appeared normal. The Veteran's diagnosis was previous coronary artery bypass graft surgery. After a review of the claims file, the examiner found that there was insufficient objective evidence to support a claim of a respiratory condition. Given the evidence discussed above, there is no current diagnosis of disease. As a result, the Board finds that the preponderance of the evidence is against the claim. As such, service connection for pulmonary disorder, to include asbestosis, must be denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 3. Entitlement to a compensable rating for bilateral hearing loss prior to September 1, 2020. 4. Entitlement to a rating higher than 20 percent for bilateral hearing loss since September 1, 2020. The Veteran seeks a higher rating for his service-connected bilateral hearing loss. The Veteran's bilateral hearing loss has been assigned a noncompensable rating prior to September 1, 2020, and 20 percent since September 1, 2020. The Veteran contends that he is entitled to increased disability evaluations for both periods on appeal. For the following reasons, the Board finds that the criteria for higher evaluations are not satisfied. Hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. In evaluating service-connected hearing loss, disability ratings are derived from 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). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. See 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See id. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. See id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See id. Prior to September 1, 2020 The Veteran was afforded a VA examination in December 2016. Audiometric testing showed puretone thresholds as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 55 60 LEFT 30 35 60 65 Puretone threshold average was calculated as 45 in the right ear and 48 in the left year. Speech recognition scores were 92 percent in the right and 90 in the left ear. The Veteran reported that hearing loss impacts his daily life because he has challenges hearing multiple people at the same time. He often needs conversations to be repeated due to distorted sound. He also has increased challenges when people are speaking from a distance. Applying these values to Table VI of 38 C.F.R. § 4.85, yields a designation of Roman Numeral II for the left ear and a Roman Numeral I is also derived for the right ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. The point where designations I and II intersect in Table VII yields a noncompensable rating. See id., DC 6100. Since September 1, 2020 The Veteran was afforded another VA examination in September 1, 2020. Audiometric testing showed puretone thresholds as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 55 65 70 LEFT 55 60 70 75 Puretone threshold average was calculated as 61.25 in the right ear and 65 in the left ear. Speech recognition scores were 68 percent in the right and 68 in the left ear. Applying these values to Table VI of 38 C.F.R. § 4.85, yields a designation of Roman Numeral V for the left ear and a Roman Numeral V is derived for the right ear. The point where designations V and V intersect in Table VII yields a 20 percent rating. See id., DC 6100. VA regulation also includes two provisions for evaluating certain patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning experienced by those with these types of patterns. See 64 Fed. Reg. 25203 (May 11, 1999). First, under 38 C.F.R. § 4.86(a), if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation will be based either on Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in a higher evaluation. Each ear will be evaluated separately. Id. This provision corrects for 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). The results in the right and left ear may also be charted against Table VIA because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) was 55 decibels or more. Doing so gives a level IV for the right ear and a level V for the left ear. Charting these levels against Table VII results in a 10 percent rating. Accordingly, the criteria for assignment of a disability rating in excess of 20 percent are not met on the basis of this examination. Second, under 38 C.F.R. § 4.86(b), when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa under 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. This provision accounts for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, as 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. See 64 Fed. Reg. 25209 (May 11, 1999). Because the Veteran's puretone thresholds at 2000 Hertz were not 70 decibels or more in either ear section 4.86(b) does not apply. The Board is very sympathetic to the Veteran. However, to the extent that VA's current rating schedule requires a significant degree of hearing loss (as measured by audiometric testing, to include speech recognition) before a Veteran can receive increased compensation, neither the Board nor the Court of Appeals for Veterans Claims itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015) ("Congress precluded the Veterans Court from 're-view[ing] the schedule of ratings for disabilities adopted under section 1155... or any action of the Secretary in adopting or revising that schedule.' 38 U.S.C. § 7252 (b). That provision squarely precludes the Veterans Court from determining whether the schedule... substantively violates statutory constraints."). In sum, the preponderance of the evidence is against the assignment of a compensable rating for bilateral hearing loss prior to September 1, 2020, and a rating higher than 20 percent after September 1, 2020. Consequently, the benefit-of-the-doubt rule does not apply, and the appeal is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.