HEPATITIS

J. PARKER · 2026 · Case ID: A26034043

MIXED

Summary

The veteran, who served from September 1973 to April 1974 and again from March 1980 to December 1982, appeals the RO's January 2021 decision. The appeal concerns the restoration of a 20 percent rating for hepatitis B, service connection for diabetes mellitus, left knee degenerative arthritis, hypertension, obstructive sleep apnea (OSA), and bilateral hearing loss. The Board found the hepatitis B rating reduction proper, as evidence showed improvement in the condition and attributed the veteran's current fatigue and weakness to non-service-connected OSA and heart conditions. Service connection for diabetes, left knee arthritis, hypertension, and OSA was denied due to a lack of in-service complaints, continuity of symptoms, or a nexus to service, with medical opinions stating these conditions were less likely than not related to service. The Board granted service connection for bilateral hearing loss, finding the veteran's account of in-service acoustic trauma credible and consistent with service, and that symptoms continued post-service. The Board resolved reasonable doubt in the veteran's favor for the hearing loss claim.

Rationale

Evidence showed improvement in hepatitis B disability.; Hepatitis B viral studies negative since 2008.; Current fatigue/weakness attributed to non-service-connected OSA and heart disorders.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

7345

Docket No.

210315-147197

Full Decision Text

Citation Nr: A26034043
Decision Date: 04/14/26 Archive Date: 04/14/26

DOCKET NO. 210315-147197
DATE: April 14, 2026

ORDER

A disability rating for hepatitis B was properly reduced from 20 percent to 0 percent, effective April 1, 2021; restoration of the 20 percent rating is denied.

Service connection for type 2 diabetes mellitus (diabetes) is denied.

Service connection for degenerative arthritis, left knee status post total left knee replacement (left knee arthritis), is denied.

Service connection for hypertension is denied.

Service connection for obstructive sleep apnea (OSA) is denied.

Service connection for bilateral hearing loss is granted.

FINDINGS OF FACT

1. A September 2020 rating decision proposed to reduce the rating assigned for hepatitis B; the accompanying notice informed the Veteran of the 60 day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days.

2. On January 11, 2021, the Veteran was notified of the rating decision implementing the final reduction of the rating hepatitis B from 20 percent to 0 percent, effective April 1, 2021.

3. An improvement in the hepatitis B under the ordinary conditions of life and work was shown at the time of the reduction.

4. The evidence shows current diagnoses of diabetes, left knee degenerative arthritis, hypertension, OSA, and bilateral sensorineural hearing loss (SNHL).

5. There was no endocrine, left knee, or cardiovascular symptoms, injury, or disease during service; and symptoms of diabetes, left knee arthritis, and hypertension, were not chronic in service, were not continuous since service separation, and were not shown to a compensable degree within one year of service separation.

6. Diabetes, left knee arthritis, hypertension, and OSA were not incurred in service and are not etiologically related to service.

7. The Veteran was exposed to loud noise (acoustic trauma) during service.

8. Symptoms of bilateral hearing loss began during service and have been continuous since service separation.

CONCLUSIONS OF LAW

1. The criteria for restoration of a 20 percent rating for hepatitis B, effective April 1, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.114, Diagnostic Code (DC) 7345 (2021).

2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The criteria for service connection for left knee arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

5. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the Appellant, served on active duty from September 1973 to April 1974, and from March 1980 to December 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision from the Regional Office (RO). In the March 15, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Hearing docket. A Board hearing was held on October 23,
.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the Appellant, served on active duty from September 1973 to April 1974, and from March 1980 to December 1982.

Therefore, the Board may only consider the evidence of record at the time of the January 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 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 another decision 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.

Regarding restoration of a 20 percent rating for hepatitis B and service connection for diabetes, left knee arthritis, hypertension, and OSA, the Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. The duties to notify and assist regarding service connection for bilateral hearing loss have been rendered moot by the grant of service connection, which is a full grant of the benefits sought on appeal.

1. Rating Reduction/Restoration Analysis for hepatitis B

In the present matter, the Veteran contends that the reduction of the hepatitis B rating from 20 to 0 percent effective April 1, 2021 was improper. He appeals for restoration of the 20 percent rating.

A rating reduction is not proper unless the disability shows actual improvement in the ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993).

A veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. A readjustment to VA's rating schedule shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated actually improved. 38 C.F.R. § 3.951(a). Specific requirements must be met to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer, 2 Vet. App. 277.

When a rating has continued for five years or more, a reduction may be accomplished when the evidence clearly warrants the conclusion that sustained improvement has been demonstrated, and when the rating agency determines that it is reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). Where doubt remains, the rating agency will continue the rating in effect, and consider scheduling reexamination 18, 24, or 30 months later. 38 C.F.R. § 3.344(b).

In the present matter, the Veteran had been rated
.R. § 3.344; see also Dofflemyer, 2 Vet. App. 277.

In the present matter, the Veteran had been rated at 20 percent for more than five years, since January 2012.

As the rating reductions currently on appeal resulted in a reduction of compensation benefits, VA must comply with the applicable notice requirements. 38 C.F.R. § 3.105(e). In this case, VA informed the Veteran of the proposed reduction, the type of evidence that should be submitted to prevent the reduction, the 60-day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days in the September 2020 notice letter. The letter was accompanied by the proposed rating decision outlining the material facts and the reasons behind the proposed reduction. It was specifically noted in the letter that within 30 days the Veteran may request a hearing, but benefits will have been adjusted as explained in the notice. Further, the notice indicated that, unless VA heard from the Veteran within 60 days, it would be assumed that he had no additional evidence and did not want a hearing and a decision would be made using the evidence of record. The Veteran did not request a predetermination hearing within the 30-day period. In January 2021, the Veteran was notified of the rating decision implementing the final reduction of the rating hepatitis B from 20 percent to 0 percent, effective April 1, 2021.

The effective date of the reductions was properly set. 38 C.F.R. § 3.105(i). The Veteran was provided with the necessary periods of time to request a hearing and submit evidence, and the reductions were effectuated on the appropriate date; therefore, given the reasons above, VA complied with the notice and timing requirements with respect to the rating reductions on appeal. 38 C.F.R. § 3.105(e), (i).

In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated; although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer, 2 Vet. App. 281 -282. However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995).

The question of whether a disability has improved involves consideration of the applicable rating criteria. Under DC 7345, which pertains to chronic liver disease without cirrhosis, a noncompensable rating is warranted when hepatitis is non symptomatic. A 10 percent rating is warranted for intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. 38 C.F.R. § 4.114.

A 20 percent rating is warranted for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Id.

For the purpose of evaluating conditions under DC 7345, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, DC 7345, Note 2.

By way of history the evidence shows that the Veteran tested positive for hepatitis B during service in 1982. See April 1982, May 1982, September 1982 service treatment records. Post-service treatment records show a history of positive hepatitis B antibody during service and a positive hepatitis C antibody in May 2003. However, RIBA was negative in 2004, and hepatitis C RNA was not detected in 2005. When the Veteran was provided VA examinations in October 2009 and May 2012 it was noted that the epatitis C antibody was negative in 2008, 2009, and 2011. Hepatitis B surface antigen and antibody was also negative in 2008, 2009, and 2011. Additionally, the examiners indicated that liver function tests (LFT) have been normal since 2003, and viral studies have shown no evidence of acute or chronic viral hepatitis. A review of a February 2020 Problem List from Memphis VA Medical Center indicated that hepatitis C was deemed resolved by 2013. See May 2003, October 2004, May 2005, February 2020 VA treatment records; see also October 2009, May 2012 VA Examination Reports.

VA treatment records show no symptoms, complaints, monitoring, evaluation, diagnosis, or treatment of any viral hepatitis condition since 2013. VA examinations were provided in August 2017 and September 2020. During the August 2017 VA examination, the Veteran reported an onset of hepatitis B in 1980, but he indicated that the condition had improved since then. The Veteran denied any treatment of hepatitis with continuous medications. The VA examiner assessed no symptoms attributable to a chronic or infectious disease, including fatigue, malaise, anorexia, and nausea and no incapacitating episodes. A hepatic function panel remained within normal limits at that time. Although the VA examiner diagnosed hepatitis B, the examiner noted that the condition was quiescent. See August 2017 VA Examination Report.

During the September 2020 VA examination, the Veteran again reported an onset of hepatitis B in 1980 and endorsed symptoms of fatigue and pain at the time of onset, but continued to deny current symptoms or treatment for hepatitis B and denied any functional limitations on occupational or daily activities due to hepatitis. The VA examiner assessed no current symptoms associated with an infectious or chronic liver disease, including no fatigue, malaise, anorexia, nausea, or vomiting. There were no incapacitating episodes associated with hepatitis. See September 2020 VA Examination Report.

During the October 2024 Board hearing, the Veteran denied any current treatment for hepatitis, noting that the condition had only been monitored in the past. The Veteran did testify that he experienced current problems with weakness and feeling tired constantly. See October 2024 Board Hearing Transcript. However, the competent evidence of record has attributed symptoms of weakness and fatigue to non-service-connected obstructive sleep apnea and heart disabilities, not to hepatitis B.

Specifically, the evidence shows that the Veteran has endorsed sleep impairment with excessive snoring and excessive daytime hypersomnolence since 2004 and a November 2004 sleep study confirmed sleep apnea. During a December 2020 VA sleep apnea examination, the Veteran reported some improvement in sleep apnea symptoms with the use of CPAP therapy but noted that daytime symptoms had not resolved. The VA examiner assessed persistent hypersomnolence associated with the non-service-connected OSA, which accounts for the Veteran's report of constant fatigue. See June 2004, August 2004, November 2004, December 2004 VA treatment records; December 2020 VA Examination Report.

Additionally, VA treatment records indicate that the Veteran has been treated for atrial fibrillation, coronary artery disease (CAD), and congestive heart failure (CHF) that account for shortness of breath. During a December 2020 VA heart examination, the Veteran endorsed shortness of breath and weakness associated with the non-service-connected heart disorder. The VA examiner assessed dyspnea and fatigue associated with the non-service-connected heart disorder. See March 2017, May 2017, June 2017, January 2021 VA treatment records; June 2020 private treatment record; December 2020
2004, November 2004, December 2004 VA treatment records; December 2020 VA Examination Report.

After considering the effects and functional loss of hepatitis B, at the time of the proposed reduction, there were affirmative findings that the Veteran did not have any continuous treatment for hepatitis B, no signs and symptoms attributable to hepatitis, such as fatigue, malaise, anorexia, nausea, or vomiting, and no incapacitating episodes to warrant maintaining the 20 percent rating.

In this case, given that hepatitis viral studies have remained negative since 2008 with no evidence of chronic viral hepatitis; symptoms of persistent hypersomnolence, fatigue, dyspnea, and weakness have been attributed by competent lay and medical evidence to non-service-connected OSA and heart disorders; and the VA examiners in August 2017 and September 2020 assessed no signs or symptoms of hepatitis B, no continuous medication ot treatment for hepatitis, and no incapacitation episodes associated with hepatitis B, the persuasive weight of the evidence shows that the hepatitis B was asymptomatic with active symptoms or functional impairment at the time of the reduction.

As discussed above, based on the results of the August 2017 and September 2020 VA examinations, the RO found that improvement in hepatitis B disability had been shown. The Board finds that the most probative evidence of record are the August 2017 and September 2020 examination reports. The VA examiners specifically evaluated the hepatitis B disability based on the criteria set forth by VA. Thus, at the time of the proposed reduction in September 2020, the evidence, including the objective findings in the August 2017 and September 2020 VA examination reports and VA medical records supported a finding that improvement in the Veteran's hepatitis B disability under the ordinary conditions of life and work reflected an improvement in the Veteran's disability picture involving hepatitis B. See Brown, 5 Vet. App.at 420-21; Schafrath, 1 Vet. App.at 594.

When examined in May 2012, the Veteran reported current symptoms of daily fatigue, as well as intermittent nausea and vomiting, and fever and chills for the previous three weeks. This was the basis for the 20 percent rating initially provided, effective January 27, 2012.

Since then, the Veteran has denied continuous symptoms or treatment associated with hepatitis B. The Veteran specifically denied any signs, symptoms, treatment, or incapacitating episodes, or other functional impairment associated with hepatitis during examinations in August 2017 and September 2020 and hepatitis studies remained within normal limits, representing improvement in the disability. Moreover, since 2013, VA treatment records and VA heart and OSA examinations in December 2020, show that recent symptoms of persistent hypersomnolence or fatigue, weakness, and dyspnea have been attributed to the non-service-connected OSA and heart disorders.

The Board has considered the Veteran's argument that the reduction of the 20 percent rating for hepatitis B was not proper based on the "55-Year Rule" and that a 20 percent rating should be restored effective April 1, 2021. See July 2024 Statement in Support of the Claim. As for the 55-Year Rule, 38 C.F.R. § 3.327(b)(2)(iv) provides that veterans who receive VA disability benefits for service-connected conditions are exempt from periodic future examinations in cases of Veterans over 55 years of age, except under unusual circumstances. The Board notes that the Veteran turned 55 years old in April 2010.

However, the 55-Year Rule does not prevent VA from ordering a new examination tied to a new claim, including a claim for a new condition, a secondary condition, or for increase rating. In the present case, the evaluation was not based upon the scheduling of a periodic examination. In contrast, it was based upon the Veteran's March 2020 application for an increased disability rating for hepatitis B (claimed as hepatitis C). See March 2020 Supplemental Claim. To be clear, 38 C.F.R. § 3.327(b)(2)(iv) (the 55-Year Rule) does not apply to reduction
The Board notes that the Veteran turned 55 years old in April 2010.

However, the 55-Year Rule does not prevent VA from ordering a new examination tied to a new claim, including a claim for a new condition, a secondary condition, or for increase rating. In the present case, the evaluation was not based upon the scheduling of a periodic examination. In contrast, it was based upon the Veteran's March 2020 application for an increased disability rating for hepatitis B (claimed as hepatitis C). See March 2020 Supplemental Claim. To be clear, 38 C.F.R. § 3.327(b)(2)(iv) (the 55-Year Rule) does not apply to reduction of disability ratings but merely the scheduling of periodic future examinations.

The Board finds that the proper procedures have been followed to effectuate the reduction, and, based on the evidence of record, an objective improvement in the hepatitis B has been shown. As such, the Board finds that the reduction in rating from 20 percent to 0 percent disabling for the hepatitis B disability, effective April 1, 2021, was proper, and restoration of the prior rating is not warranted. 38 C.F.R. §§ 4.2, 4.10; Brown at 421.

2. Service Connection for Diabetes Mellitus

3. Service Connection for Left Knee Disability

4. Service Connection for Hypertension

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service.

The Veteran appeals for service connection for diabetes, left knee arthritis, and hypertension. At the October 2024 Board virtual hearing, the Veteran testified that diabetes and hypertension were diagnosed at the same time as hepatitis B in 1994, and he asserted that the conditions may have been impacted by the service-connected hepatitis B. Additionally, the Veteran testified that he might have sprained the left knee during service but stated that it was not anything serious back then. The Veteran denied any knee injury after service separation and reported that he had his left knee replaced in 2017 because he could hardly walk. See October 2024 Board Hearing Transcript.

The evidence of record shows a current diagnosis of diabetes mellitus, hypertension, and left knee arthritis, which are recognized as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for diabetes mellitus, left knee arthritis, and hypertension. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

After reviewing all the lay and medical evidence of record, the Board finds that the persuasive weight of the evidence demonstrates that the Veteran's diabetes, left knee arthritis, and hypertension did not have their onset during service and are otherwise not related to active service. The persuasive weight of the evidence is against finding that symptoms of diabetes, left knee arthritis, or hypertension were "chronic" in service. The service treatment records show no complaints, symptoms, findings, diagnosis, or treatment for diabetes, a left knee disability, or hypertension. January 1979, February 1980, and December 1982 Reports of Medical History show that the Veteran endorsed being in good health, and he denied high or low blood pressure, arthritis, rheumatism, or bursitis, and trick or locked knee. See January 1979, February 1980, and December 1982 service treatment records. The evidence does not indicate, and the Veteran does not assert, that diabetes, left knee arthritis, or hypertension, to include symptoms thereof, developed during service.

The Board next finds that the persuasive weight of the evidence is against finding that symptoms of diabetes, left knee arthritis, or hypertension were "continuous" since service separation. Neither the Veteran nor the representative has asserted that symptoms of diabetes, left knee arthritis, or hypertension were present since service separation. Post-service treatment notes show a family history of diabetes mellitus and hypertension. The record indicates that the Veteran was initially diagnosed with diabetes mellitus and hypertension in 1994 and 2000 respectively, 12 to 18 years after service separation. Symptoms of left knee pain were first reported in 2000, 18 years after service separation, and left knee arthritis was first diagnosed in 2011, 29 years after service. See August 1999, February 2000, June 2001, August 2011 VA treatment records. Post-service treatment notes do not reflect lay histories, for the purpose of treatment, of diabetes, left knee, or hypertensive symptoms that began during active service or were continuous since service separation. This same evidence also supports the finding that symptoms of diabetes, left knee arthritis, and hypertension did not manifest to a compensable degree within one year of service separation.

On the question of a direct nexus to service, neither the Veteran nor the evidence has suggested a direct nexus between the current diabetes, left knee arthritis, hypertension and active service. As noted above, the service treatment records show no complaints, symptoms, findings, diagnosis, or treatment of the claimed conditions during service or for many years after service. The lay and medical evidence shows that during December 2020 VA examinations the Veteran reported initial onset of hypertension and diabetes in 1994, at least 12 years after service separation. See August 1999, February 2000 VA treatment records; December 2020 VA Examination Report; see also October 2024 Board Hearing Transcript.

While the Veteran testified that he "may have" strained the knee during service, this does not indicate that the Veteran is certain of any knee injury during service. The Veteran also testified that any knee sprain ot strain he possibly experienced during service was not serious at that time. See October 2024 Board Hearing Transcript. As noted above, the service treatment records show no report of knee injury, symptoms, complaints, findings, diagnosis, or treatment of any knee disorder during service. The March 1974 and December 1982 service separation examinations show that the lower extremities were clinically normal at service separation, and the Veteran denied any knee problems on the Reports of Medical History in January 1979, February 1980, and December 1982.

Moreover, post-service records indicate that when the Veteran initially sought treatment for left knee pain in February 2000, he provided a lay history for the purpose of treatment of initial injury of the knee as a child when he fell and a tree fell on the back of his knee. During a December 2020 VA examination, the Veteran reported that left knee symptoms did not begin until 1989, seven years after service separation. The Veteran did not report any left knee complaints, symptoms, injury, or event during service, or any continuous symptoms of a left knee disorder since service separation.

The Veteran provided written statements from his friends in 2012. The Veteran's friends wrote that they have known that Veteran for many years ranging from 1987 to 2010, and that they witnessed the Veteran's ability to walk and stand deteriorate over the years due to knee pain. The written statements did not indicate that the Veteran's knee pain had been present since service or that the Veteran reported a history of onset of knee symptoms or injury during service to his friends. See December 2012 Correspondence.

VA examinations were provided in December 2020. The VA examiner diagnosed diabetes mellitus, hypertension, and left knee degenerative arthritis, status post knee replacement. After reviewing the records, as well as interviewing and examining the Veteran, the VA examiner opined that it is less likely than not that the diabetes, left knee arthritis, or hypertension were incurred in or caused by service. The examiner reasoned that treatment records do not reflect any symptoms, diagnosis, or treatment for diabetes, a left knee disorder, or hypertension during service or within one year of service. Additionally, the evidence does not reflect any chronicity of care or onset of symptoms for the claimed conditions until many years after service separation.

The Board finds the VA medical opinions to be probative in this matter, as the examiner considered the relevant lay and medical history of record, including the service treatment records and post service records showing no history of symptoms, diagnosis, or treatment of diabetes, a
examining the Veteran, the VA examiner opined that it is less likely than not that the diabetes, left knee arthritis, or hypertension were incurred in or caused by service. The examiner reasoned that treatment records do not reflect any symptoms, diagnosis, or treatment for diabetes, a left knee disorder, or hypertension during service or within one year of service. Additionally, the evidence does not reflect any chronicity of care or onset of symptoms for the claimed conditions until many years after service separation.

The Board finds the VA medical opinions to be probative in this matter, as the examiner considered the relevant lay and medical history of record, including the service treatment records and post service records showing no history of symptoms, diagnosis, or treatment of diabetes, a left knee disorder, or hypertension during service or for many years after service. Moreover, in light of the lay histories provided by the Veteran during VA clinic encounters and the VA examinations of a post-service onset of the current diabetes, knee arthritis, and hypertension, a probable medical nexus has not been established by the evidence of record.

During the October 2024 Board hearing, the Veteran's representative elicited lay testimony that suggests the diabetes and hypertension may have been impacted by the service-connected hepatitis B, which raises a theory of secondary service connection (38 C.F.R. § 3.310). However, the evidence of record does not reflects any pre-decisional duty to assist error regarding entitlement to secondary service connection, as no lay or medical evidence of a causal or aggravating connection between the diabetes, hypertension, or left knee disorders and the service-connected hepatitis B was raised prior to January 2021 AOJ rating decision on appeal, and no competent medical evidence of a nexus between the diabetes, hypertension, or left knee arthritis and the service-connected hepatitis B was submitted to the record prior to the January 2021 rating decision on appeal or within 90 days of the October 2024 Board hearing.

As a lay person, the Veteran is competent to report many endocrine, cardiovascular, or musculoskeletal symptoms he has experienced at any given time; however, under the specific facts of the case that show no in-service diabetes indications, left knee, or hypertension symptoms during service, and no diabetes, left knee, or hypertension symptoms until many years after service, the Veteran does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of the current diabetes, left knee arthritis, or hypertension. The etiology of the diabetes, left knee arthritis, and hypertension involve complex medical etiological questions dealing with the origin and progression of the endocrine, cardiovascular, and musculoskeletal systems, and diabetes, left knee arthritis, or hypertension are disorders diagnosed primarily on symptoms, clinical findings, and physiological testing. For these reasons, the Veteran's unsupported lay opinion under the specific facts of this case that include no in-service injury, diagnosis, or symptoms of diabetes, left knee arthritis, or hypertension and no diabetes, left knee arthritis, or hypertension symptoms until years after service, is of no probative value.

For these reasons, the Board finds that the persuasive weight of the lay and medical evidence is against the appeal for service connection for diabetes mellitus, left knee arthritis, and hypertension; consequently, the appeal must be denied.

5. Service Connection for Obstructive Sleep Apnea

The Veteran appeals for service connection for sleep apnea. The Veteran denied any sleep problems during, noting that his sleep apnea was first diagnosed after service. Although the attorney representative suggested that sleep apnea may be related to the service-connected hepatitis B, the Veteran testified that no treating physician had indicated that his sleep apnea was related to hepatitis B. See October 2024 Board Hearing Transcript.

Initially, the Board notes that there is a current diagnosis of sleep apnea, as reflected in November 2004 sleep study, and the December 2020 VA Examination Report. See November 2004, December 2004 VA treatment records; December 2020 VA Examination Report.

After a review of all the evidence, both lay and medical, the Board finds that the persuasive weight of the evidence is against a finding that the current sleep apnea was incurred in or is otherwise causally related to active service. The service treatment records show not complaints, symptoms, or findings of sleep apnea during service. The service treatment records show that on Reports of Medical History in January 1979, February 1980, and December 1982 the Veteran consistently denied frequent trouble sleeping. Additionally, the Veteran testified that he did not have any problems with sleep during military service. See January 1979, February 1980, December 1982 service treatment records; October 2024 Board Hearing Transcript.

Post-service treatment records show no complaints, symptoms, findings, diagnosis, or treatment for sleep apnea until many years after service separation
finding that the current sleep apnea was incurred in or is otherwise causally related to active service. The service treatment records show not complaints, symptoms, or findings of sleep apnea during service. The service treatment records show that on Reports of Medical History in January 1979, February 1980, and December 1982 the Veteran consistently denied frequent trouble sleeping. Additionally, the Veteran testified that he did not have any problems with sleep during military service. See January 1979, February 1980, December 1982 service treatment records; October 2024 Board Hearing Transcript.

Post-service treatment records show no complaints, symptoms, findings, diagnosis, or treatment for sleep apnea until many years after service separation. The record shows that the Veteran first reported symptoms of sleep apnea in 2004, 22 years after service separations. Specifically, the Veteran was markedly obese, and he endorsed loud snoring, excessive daytime hypersomnolence, and that he stopped breathing at night and woke up gasping for air. The Veteran was diagnosed with clinical OSA, which was confirmed via sleep study in November 2004. See August 2004, November, 2004, December 2004 VA treatment records.

A VA examination was provided in December 2020. During the examination, the Veteran reported that he first started having problems with sleeping around 1996. The VA examiner diagnosed OSA and opined that it is less likely than not that the condition was incurred in or otherwise related to service. The VA examiner reasoned that the evidence of record is silent for any symptoms or treatment for sleep apnea during service, as the condition was first reported and diagnosed many years after service separation. See December 2020 VA Examination Report. In this case the competent lay and medical evidence of record indicates that Veteran had no problems with sleep during service, and that symptoms of sleep apnea first manifested at some point between 1996 and 2004, 14 to 22 years after service, and was initially diagnosed in 2004. These facts, and the medical opinion based on accurate factual assumptions, weigh against a nexus between OSA and active service.

During the October 2024 Board hearing, the Veteran's representative suggested that the OSA may have been impacted by the service-connected hepatitis B, which raises a theory of secondary service connection (38 C.F.R. § 3.310). However, the Veteran testified that no treating provider has indicated that his OSA is related to the service-connected hepatitis B. Furthermore, the evidence of record does not reflect any pre-decisional duty to assist error regarding entitlement to secondary service connection, as no lay or medical evidence of a causal or aggravating connection between OSA and the service-connected hepatitis B was raised prior to the January 2021 AOJ rating decision on appeal, and no competent medical evidence of a nexus between OSA and the service-connected hepatitis B was submitted to the record within 90 days of the October 2024 Board hearing.

As a lay person, the Veteran is competent to report some sleep apnea symptoms, but limited by the fact that he cannot observe himself sleep; however, under the specific facts of the case that all the evidence shows no in-service sleep apnea symptoms, and no sleep apnea symptoms until 14 or more years after service, the Veteran does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of the current sleep apnea. The etiology of the sleep apnea is a complex medical etiological question dealing with the origin and progression of the respiratory system, and sleep apnea is a disorder diagnosed primarily on symptoms, clinical findings, and physiological testing such as a sleep study. For these reasons, the unsupported lay opinion under the specific facts of this case that include no in-service injury, diagnosis, or symptoms of sleep apnea and no sleep apnea symptoms until years after service, is of no probative value.

Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the current sleep apnea and active service or the service-connected hepatitis B. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for sleep apnea is warranted. Rather, the evidence persuasively weighs against service connection for sleep apnea.

6. Service Connection for Bilateral Hearing Loss

The evidence shows a current diagnosis of bilateral SNHL, which VA considers to be an "organic disease of the nervous system" recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the
apnea and active service or the service-connected hepatitis B. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for sleep apnea is warranted. Rather, the evidence persuasively weighs against service connection for sleep apnea.

6. Service Connection for Bilateral Hearing Loss

For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

After a review of all the evidence, the Board finds there is a current disability of bilateral hearing loss to VA disability standards at 38 C.F.R. § 3.385, as reflected in a January 2021 VA Examination Report.

The evidence shows in-service acoustic trauma. The DD Form 214 shows a military occupational specialty of Electrical Mechanical Equipment Repairman, which has a probability of hazardous noise exposure, and Field Medical Services Technician. The veteran reported he was exposed to small arms fire, diesel engines, generators, heavy equipment/machinery, ship noise, and aircraft noise (e.g., jet engines, helicopters, flight line). The Board finds the Veteran's account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of his service. 38 U.S.C. § 1154(a).

The evidence is at least in relative equipoise on the question of whether symptoms of bilateral hearing loss began during service and have been continuous since service separation. The Veteran has provided credible lay statements of exposure to loud noise during his first period of active service from 1973 to 1974, as he was working as an electrical repairman and regularly exposed to loud noise from working with drills, heavy machinery, generators, and exposure to jet engines on the flightline. The Veteran testified that he first noticed an onset of hearing loss symptoms during his second period of service from 1980 to 1982 while working as medical technician, which he described as diminished hearing and during service. The Veteran testified that a military physician that he worked under told him something was wrong with his hearing in 1980 and recommended that he get his hearing checked because others were reporting that the Veteran could not hear them while performing his duties. The Veteran reported an onset of difficulty hearing speech during service if someone was not facing him so that he could read their lips. Although the Veteran denied seeking further evaluation of hearing loss symptoms during service, he reported that hearing loss symptoms continued and progressed after service separation. See October 2024 Board Hearing Transcript; January 2021 VA Examination Report.

The Veteran has provided credible lay statements of in-service acoustic trauma with changes in hearing during service that have continued since service separation. The fact that service connection for tinnitus was granted by VA based on similar findings of loud noise exposure during service and onset of tinnitus after the same loud noise exposure suggests the occurrence of nerve damage during service that is also capable of immediately causing sensorineural hearing loss. See July 2017, January 2021 VA examination reports, see also August 2017 rating decision. Similar to tinnitus, SNHL is linked with nerve damage that most often occurs "when the tiny hair cells in the cochlea are injured." See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding SNHL is a permanent disability that was incapable of actual improvement of the nerve damage because chronic SNHL either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic SNHL that was caused by acoustic trauma is not medically possible). Because the Veteran sustained nerve damage that caused the service-connected tinnitus, by necessary logical inference, the same nerve damage to the inner ear is sufficient to cause left ear SNHL.

Because the Board has found continuous post-service symptoms of bilateral hearing loss and there is current hearing loss disability (
"when the tiny hair cells in the cochlea are injured." See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding SNHL is a permanent disability that was incapable of actual improvement of the nerve damage because chronic SNHL either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic SNHL that was caused by acoustic trauma is not medically possible). Because the Veteran sustained nerve damage that caused the service-connected tinnitus, by necessary logical inference, the same nerve damage to the inner ear is sufficient to cause left ear SNHL.

Because the Board has found continuous post-service symptoms of bilateral hearing loss and there is current hearing loss disability (38 C.F.R. § 3.385), "chronic disease" presumptive service connection is warranted for left ear hearing loss under 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b). The grant of "chronic disease" presumptive service connection for hearing loss renders moot all other theories of service connection, including direct service connection. This obviates the need for a direct nexus opinion (July 2017, January 2021) to relate the bilateral hearing loss to the acoustic trauma during service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for "chronic disease" presumptive service connection for bilateral hearing loss have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Moore

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.

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