Citation Nr: 21042384 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-02 018 DATE: July 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 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 October 1968 to August 1973 and the United States Coast Guard from August 1973 to October 1988. A hearing was held before the undersigned on September 16, 2020. A transcript of the hearing testimony has been associated with the claims file. The record was held open for 90 days at the request of the Veteran's representative to submit additional evidence. Additional evidence was not received during that time frame. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded these issues in January 2020. The issues of service connection for a low back condition, right knee arthritis, and left knee arthritis status post total knee replacement were also remanded. An April 2021 Rating Decision granted service connection for these issues. Therefore, they are no longer on appeal. 1. Entitlement to service connection for obstructive sleep apnea The Veteran testified that other sailors told him he snored very badly while in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea and the Veteran testified others told him he snored during service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of obstructive sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. On his VA Form 9, the Veteran indicated his first sleep study was in 2004, over a decade after his separation from service. Service treatment records are accordingly negative for complaints or findings related to sleep apnea. A February 2021 VA examiner opined that the Veteran's sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including snoring during service. The examiner noted a report of diagnosis of obstructive sleep apnea as early as 1998 when the Veteran had a surgical procedure to correct sleep apnea, and a record of a sleep study conducted in 2014 showing a diagnosis of obstructive sleep apnea. The examiner also noted the Veteran's statements that his roommates in service told him that he snored and his wife reported increased snoring upon his return. The examiner found that that there was no record of symptoms of obstructive sleep apnea while in active service. Therefore, there was no evidence that the Veteran's claimed sleep apnea was incurred in or caused by service including the symptom of snoring in service. The VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the examiner considered the Veteran's lay statements in providing the nexus opinion. While the Veteran is competent to report having experienced symptoms of snoring since service, he is not competent to provide a diagnosis in this case or determine that symptoms, such as snoring, were manifestations of sleep apnea. The issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the VA examiner's opinion considering the Veteran in this case is not competent to provide a nexus opinion regarding this issue. Therefore, service connection is not warranted. 2. Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that he is entitled to a compensable rating for his hearing loss. In his September 2016 notice of disagreement, the Veteran indicated his evaluation should be 10 or 20 percent. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). An August 29, 2016 VA examination reveals that the Veteran reported he misses things on television and radio. He must turn up the volume. He has trouble hearing in social situations and cannot understand. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 15 40 50 33 96 LEFT 25 25 45 60 39 98 An April 14, 2021 VA examination reveals that the Veteran reported he does not understand what is being said, especially if there is background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 20 45 55 36.25 100 LEFT 25 40 65 65 48.75 100 Applying the results to Table VI, the findings from both tests yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including missing things on television and radio, needing to turn up the volume, and having trouble hearing in social situations. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.