Citation Nr: 22012241 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 13-33 257 DATE: March 3, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an increased rating for a right elbow disability is remanded. Entitlement to an increased rating for a left elbow disability is remanded. FINDING OF FACT The Veteran does not have bilateral hearing loss that is considered to be disabling for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to December 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 and March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he is entitled to service connection for bilateral hearing loss because the alleged disability is the result of active service. More specifically, the Veteran contends that he was exposed to artillery without hearing protection. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated in service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be established for any disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection for hearing loss disability may be established where the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board finds that the medical evidence of record shows that the Veteran did not meet the criteria for bilateral hearing loss to be considered a disability. 38 C.F.R. § 3.385. In the June 1981 enlistment examination, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 25 10 LEFT 15 10 10 15 25 In a May 1983 audiogram, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 20 10 LEFT 15 15 15 20 25 In a October 2010 VA examination, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 30 25 LEFT 20 15 20 25 30 Speech audiometry found speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The examiner diagnosed normal hearing in the right ear with mild sensorineural hearing loss at 3000 Hertz and normal hearing in the left ear with mild sensorineural hearing loss at 4000 Hertz. Those findings do not constitute a bilateral hearing loss disability for VA purposes. The auditory threshold was less than 40 decibels in all frequencies between 500 and 4000. The Veteran did not exhibit a hearing decibel loss of 26 or greater in at least three of the five hearing frequencies. Speech recognition test was 100 percent bilaterally. Furthermore, VA medical treatment records show that audiogram testing returned negative for hearing loss in August 2015, November 2013, January 2020, and November 2021. There is no evidence that any of the above examiners were either not competent or credible, and the examinations were administered by qualified audiologists and used the appropriate tests. 38 C.F.R. § 4.85(a). The Board finds that the October 2010 examination report is entitled to significant probative weight as to the presence of a current disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran has asserted that he has bilateral hearing loss, he is not competent to state that he has hearing loss considered to be disabling for VA purposes, as to do so requires audiometric testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran reported acoustic trauma in service, but service connection based on service noise exposure alone cannot be granted, a current disability must exist in order for there to be a viable claim for benefits. The Veteran is not competent to diagnose hearing loss disability for VA purposes. While the Veteran has credibly stated he has hearing loss, the audiometric findings show that hearing loss has not met the criteria to be considered a disability. 38 C.F.R. § 3.385. The Board finds that the preponderance evidence is against a finding that there is a hearing loss disability during the appeal period, or approximate to the rating period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board finds that service connection is not warranted on a direct or presumptive basis. 38 C.F.R. §§ 3.303, 3.309(a). Because the preponderance of the evidence is against the claim, the claim for service connection for bilateral hearing loss must be denied. The Board finds that the evidence is not in relative equipoise, and there is not reasonable doubt to resolve in favor of the Veteran. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an increased rating for a right elbow disability is remanded. 2. Entitlement to an increased rating for a left elbow disability is remanded. The Veteran contends that he is entitled to an increased rating for right and left elbow disabilities because they are worse than contemplated by the currently assigned rating. In a June 2013 statement, the Veteran asserted that the disabilities had deteriorated to a point where he was no longer able to work or perform day to day activities. The Veteran has not received a VA examination of the elbows since October 2012. As a result, further examination is needed to ascertain the current severity of the service-connected elbow disabilities. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that he is entitled to service connection for sleep apnea. More specifically, he asserts that his symptoms began while in active service. The service medical records do not show complaints or treatment for sleep apnea. The Veteran has not submitted any evidence to support the contention that he has been diagnosed with sleep apnea during or since service, or that the claimed disability began in service. A January 2016 VA medical record notes a diagnosis of sleep apnea. The evidence of record shows that there is a diagnosis of sleep apnea, lay statements of symptoms during service, and a suggestion that a current disability is related to service. Remand is required to obtain an opinion as to whether current sleep apnea is related to service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a medical doctor who has not previously examined the Veteran in conjunction with this claim to determine the etiology of sleep apnea. The examiner must review the claim file and should note that review in the report. The examiner should consider the Veteran's lay statements regarding symptoms during and since service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is related to service or any event, injury, or disease during service. The examiner should provide a rationale for the opinion. 2. Schedule the Veteran for an examination by an examiner who has not previously examined the Veteran in conjunction with this claim to determine the current severity of service-connected right and left elbow disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for rating the disability under the rating criteria. The examiner should provide the following information: (a.) Test the Veteran's range of motion for right and left elbows for active, passive, weight-bearing, and nonweight-bearing motion. State whether there is any additional loss of function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (c.) The examiner should state whether there is ankylosis of either elbow. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.