Citation Nr: A25035759 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240105-407456 DATE: April 17, 2025 ORDER Service connection for obstructive sleep apnea is denied. A compensable rating for hearing loss is denied. REMANDED Entitlement to service connection for hypertensive vascular disease (hypertension) is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease. 2. 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 have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for 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 honorably on active duty in the United States Navy from November 1972 to November 1980. VA memo added to the file in August 2023 shows the Veteran participated in toxic exposure risk activity (TERA) as a radar, UHF technician, and as a government civilian contractor working in Kuwait during the Persian Gulf War. The 2 rating decisions on appeal were both new claims issued in November 2023 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the January 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2023 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue other decisions on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Veteran testified at a hearing before a Veterans Law Judge in February 2024 on the issue of bilateral hearing loss. A transcript of the hearing has been associated with the claims file. The Board also notes that following the two decisions on appeal a new decision on a related claim was issued. At the time of the November 2023 rating decision on appeal, only the left ear hearing loss was service connected. Subsequently, in April 2024 the Board granted service connection for the Veteran's right ear hearing loss and the AOJ implemented this grant effective December 31, 2013. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation during active service of a preexisting injury or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is "nearly equal" or in approximate balance, with the Veteran prevailing in either event, or whether most of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2022). 1. Service connection for obstructive sleep apnea is denied. The Veteran contends that sleep apnea is related to service. 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 diagnosis of the obstructive sleep apnea (OSA) evidence of record persuasively weighs against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The November 2023 VA examiner opined that the Veteran's OSA is less likely than not related to an in-service injury, event, or disease. The VA examiner explained that OSA is less likely than not incurred in or caused by fatigue, sleep deprivation, and snoring during service. She reviewed the Veteran's military physicals, and military records and found they were silent for claimed symptoms or claimed condition. Additionally, the November 2023 VA examiner noted that the Veteran endorsed having symptoms only since 2015, 35 years after leaving service. The November 2023 examiner was also asked to opine whether the Veteran's medical records support that any currently diagnosed condition related to the Veteran's claimed obstructive sleep apnea, is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by burn pits and other toxins, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic combined effect of all toxic exposure risk activities of the Veteran. She opined that the claimed condition was less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that OSA is less likely than not due to military toxic exposures. She explained that OSA is due to repetitive collapse of upper airway during sleep. She noted that military toxic exposures are not risk factors for OSA in current medical literature, and OSA is not a presumptive condition for military toxic exposures. While the Veteran believes the claimed obstructive sleep apnea is related to fatigue, sleep deprivation, snoring, and toxic exposure in service, the Veteran is not competent to opine as to the etiology of the condition, which requires specialized medical knowledge and training, which the record does not show he has. The November 2023 examiner, as a trained and educated medical professional is competent to opine against these causes based on review of the Veteran's medical files, including Veteran's own lay statements and medical literature. The Board assigns greater weight to the opinion of the November 2023 VA examiner. While the Veteran believes the claimed obstructive sleep apnea is related to fatigue, sleep deprivation, snoring, and toxic exposure in service, the Board reiterates that the evidence of record persuasively weighs against finding that OSA started in service or is otherwise related to service. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. 1. A compensable rating for hearing loss (left ear hearing loss) The Veteran is seeking a higher rating because he believes his hearing loss warrants a higher disability rating. 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). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). TABLE VI Numeric Designation of Hearing Impairment Based On Puretone Threshold Average and Speech Discrimination Puretone Threshold Average % of discrim-ination 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV IV IV IV V 68-74 IV IV IV IV VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX IX IX X 0-34 IX IX XI XI XI XI XI XI XI Table VII Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100) Poorer Ear XI 100 X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 0 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I Table VIa * Numeric Designation of Hearing Impairment Based Only On Puretone Threshold Average 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV IV VI VII VIII IX IX XI * This table is for use only as specified in §§ 4.85 and 4.86 The Veteran had only one hearing loss examination during the appeal period on file. An October 5, 2023, VA examination reveals that all available records were reviewed, and findings considered when completing this DBQ. The Veteran was service connected for left ear hearing loss and tinnitus in 2013. He had normal hearing sensitivity when he entered military service in 1972. On separation examination in 1980, he had normal right ear hearing with a mild left ear hearing loss. He had a 15-25 dBHL STS in the left ear on separation exam. The Veteran reported being "Unable to hear clearly." 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: 10/05/2023 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 35 40 30 100% LEFT 30 40 60 85 53.75 96% Applying the results to Table VI, the findings 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 0 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 for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's statement that he is "unable to hear clearly." The Veteran is competent to report difficulty 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 most probative evidence of record persuasively weighs against the claim of entitlement to an increased rating for hearing loss. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to service connection for hypertensive vascular disease (hypertension) is remanded. [NOTE 1: For VA disability rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. NOTE 2: For VA purposes, the INITIAL diagnosis of hypertension or isolated systolic hypertension must be confirmed by readings taken 2 or more times on at least 3 different days. Blood pressure results may be obtained from existing medical records or through scheduled visits for blood pressure measurements. Review of the Veteran's service treatment records (STR) shows the following blood pressure readings: BP 112/62, BP 130/70, and BP 124/54, all of which are in the normal range. There are no other medical documents with blood pressure readings prior to the November 2023 decision on appeal other than the September 2023 Hypertension examination added to the file in October 2023, which shows: BP 146/92, 146/94 on 9/13/2023; 172/96, 146/94 on 10/7/2023; and 141/90, 144/90, on 10/8/2023. On the date of the hypertension examination, the Veteran had the following blood pressure readings: 148/90, 146/92, and 146/94 on 09/13/2023. The Agency of Original Jurisdiction (AOJ) obtained an October 2023 medical opinion prior to the November 2023 rating decision on appeal. However, this medical opinion does not provide an adequate rationale regarding whether the Veteran's hypertension had its onset in service or is otherwise related to service. Specifically, the examiner, while opining against service connection for HTN stated: The Veteran's claimed hypertension is at less as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) proximately due to or the result of the Veteran's [service-connected] tinnitus (ringing in ears). I cannot find any supporting medical literature to say that tinnitus can cause HTN. The rationale above is confusing and contradicts itself. On one hand it says the Veteran's HTN is related to service-connected tinnitus, and on the other hand it says there is no literature to support a causal relationship. Therefore, the Board finds the opinion inadequate for rating purposes. Additionally for the second HTN opinion, the examiner states that HTN was less likely than not (likelihood is less than approximately balanced or nearly equal) caused by the indicated toxic exposure risk activities, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. The VA examiner's stated rationale for this negative toxic exposure opinion is simply: "This Veteran does meet the VA's criteria for HTN." The examiner does not explain why this does not meet the criteria in light of the numbers reported, nor does the examiner address the other conflicting opinions that appear to indicate a diagnosis of hypertension. And finally, there is no direct service connection opinion. In summary, the September 2023 VA HTN opinion provides an inadequate secondary service connection opinion, an inadequate toxic exposure opinion, and no direct service connection opinion. Although the Board regrets the additional delay, a remand is required in this case to ensure that there is a complete record upon which to decide the issue of service connection for hypertension, to correct a pre-decisional duty to assist error. The matter is REMANDED for the following action: 1. Provide the Veteran's claims file to the examiner who provided the VA Hypertension examination in September 2023, or if he is unavailable, to another VA examiner. If the examiner concludes that the Board's questions cannot be answered without an examination, one should be scheduled. The examiner must determine the current nature and etiology of all claimed conditions. All necessary tests should be conducted, as deemed appropriate. All relevant records, to include a copy of this Remand as well as the claims folder, must be made available to and reviewed by the reviewer/examiner in conjunction with the examination or review. The reviewer/examiner must confirm in the examination report that the claims folder was reviewed. Based on review of the record, the reviewer/examiner MUST render an opinion as to: (a.) Whether it is at least as likely as not (i.e., nearly equal) that the Veteran's hypertension disability had its onset during military service or is otherwise causally or etiologically related to the Veteran's active service? (b.) Whether it is at least as likely as not (i.e., nearly equal) that the Veteran's hypertension disability is secondary to any of the Veteran's service-connected disabilities? (c.) Whether it is at least as likely as not (i.e., nearly equal) that the Veteran's hypertension disability is the result of toxic exposure in service? (Continued on the next page) ? A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be discussed and considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. (he/him/his) 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.