Citation Nr: 1242790 Decision Date: 12/14/12 Archive Date: 12/20/12 DOCKET NO. 10-34 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral tinnitus. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty with the US Marine Corps from November 1989 to November 1994. He served with the US Air Force - Air National Guard on active duty in support of Operation Enduring Freedom from March 2003 to November 2004, December 2005 to March 2006, and from December 2007 to January 2008. He was discharged from the National Guard in August 2008. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in September 2009 by a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. The Board notes that while the Veteran filed a notice of disagreement regarding the initial noncompensable rating assigned to his right shoulder impingement syndrome by the RO in the rating decision in September 2009, he did not perfect his appeal regarding this issue and the claim is not in appellate status. A review of the Virtual VA paperless claims processing system shows additional documents which are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. Bilateral tinnitus began during active duty service. 2. Sleep apnea began during active duty service. CONCLUSIONS OF LAW 1. Bilateral tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Sleep apnea was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a). However, as the Board is granting the claim for service connection for bilateral tinnitus and sleep apnea, there are no further VCAA duties in this case. Wensch v. Principi, 15 Vet. App 362, 367-368 (2001). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). The regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidence and Analysis In this case, the Veteran asserts that he had tinnitus and symptoms of sleep apnea during active duty service, which have continued since he separated from active duty service in January 2008. In his claim received in April 2009, he indicated that his sleep apnea began during active duty service in 2003 and his bilateral tinnitus began in 1997. On VA audiology examination in July 2009, the Veteran clarified that the onset of tinnitus was during his active duty service with the Marine Corps, which was during the period from November 1989 to November 1994. In March 2010, the Veteran explained that he did not report his tinnitus during post-deployment examinations because he was not aware that tinnitus referred to ringing in the ears. He contended that tinnitus was due to his military duties as an aircraft communication/navigation systems technician in the Marine Corps and as an integrated avionics systems craftsman during periods of active duty deployment. His DD 214 Forms for his periods of active duty service confirm that he had these duties. In August 2010, the Veteran contended that he remained silent about his tinnitus and sleep apnea because had they been diagnosed earlier he would have been discharged from the National Guard, which is what occurred after he was diagnosed with sleep apnea. The Veteran's service treatment records are unremarkable for complaints, treatment or diagnoses related to tinnitus and sleep apnea. However service treatment record during periods when the Veteran had active duty service show that on post-deployment health assessments dated in July 2003, February 2004, and February 2006, the Veteran reported exposure to loud noises. On the post-deployment health assessment dated in July 2003 the Veteran also indicated that during the deployment he felt tired after sleeping. On the post-deployment health assessment dated in March 2008, the Veteran also reported exposure to loud noises. On VA audiology examination in July 2009, the Veteran reported noise exposure due to gunfire, aircraft noise, fans, and flight line noise. The Veteran reported the onset of periodic bilateral tinnitus during his active duty service with the Marine Corps, which increased in severity of the years. The examiner was of the opinion that the bilateral tinnitus is less likely as not caused by or a result of the Veteran's military service as the Veteran's service treatment records are negative for tinnitus and the Veteran denied ringing in his ears at every post-deployment examination, including the last one being in 2008. As for the sleep apnea, private medical records show that the Veteran in April 2008 was diagnosed with severe sleep apnea. In June 2008 the examiner stated that the onset of the Veteran's sleeping difficulty has been gradual, has been occurring in a persistent pattern for months, and has been constant. On VA examination in August 2009, the Veteran reported a history of obstructive sleep apnea as diagnosed during National Guard service with symptoms of daytime somnolence and excessive snoring. The examiner indicated that the Veteran used a continuous positive airway pressure machine. At the outset, the Board acknowledges that the Veteran is competent to report symptoms that he can observe. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). As for tinnitus, it is a condition under case law where lay observation has been found to be competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). The Board finds both the Veteran's assertion of continuous symptomatology of tinnitus and sleep apnea since service to be credible as well as his explanation that previously he was unable to articulate his symptoms of tinnitus and did not want to report symptomatology of both disabilities due to fear of being discharged from the National Guard. The Veteran's statements are consistent with the service records referenced above and with the private medical records dated in June 2008, which show that the onset of sleep problems has been gradual. It is noteworthy that the Veteran was diagnosed with sleep apnea less than three months after separation from active duty service in January 2008. As for the unfavorable VA opinion in July 2009 pertaining to the nexus of the Veteran's tinnitus, it is inadequate as the examiner in rendering the opinion did not consider the Veteran's contentions that he has had ringing in his ears since service. Instead the VA examiner focused on the absence of documented tinnitus in the service treatment records. The credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence, but this is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examiner's opinion is outweighed by the other evidence of record, including the multiple service treatment records that show complaints of loud noise exposure, the Veteran's military occupational specialty during active duty service as an aircraft communication/navigation systems technician and as an integrated avionics systems craftsman, and the Veteran's competent and credible assertions of continuous symptomatology of bilateral tinnitus since active duty service. For these reasons, the Board finds that the weight of the evidence supports the conclusion that the onset of the Veteran's current bilateral tinnitus and obstructive sleep apnea were incurred during active duty service and that service connection must be granted. (The Order follows on the next page.) ORDER Entitlement to service connection for bilateral tinnitus is granted. Entitlement to service connection for sleep apnea is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs