Citation Nr: 1324903 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-49 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from February 2004 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea is related to his active military service. 2. Resolving all reasonable doubt in the Veteran's favor, his tinnitus is related to his active military service. CONCLUSIONS OF LAW 1. Obstructive sleep apnea was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(m), 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for obstructive sleep apnea and tinnitus, which represents a complete grant of the benefits sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Obstructive Sleep Apnea The Veteran was formally diagnosed via a sleep study at VA in March 2009 to have severe obstructive sleep apnea. He contends this is related to his period of active duty. In support of his claim, the Veteran submitted three buddy statements in which they each indicate that they have personal knowledge that, during the Veteran's period of active duty, he snored very loudly and that, as time progressed, his snoring seemed to worsen. Further evidence in support of the Veteran's claim includes the medical opinion of his treating VA physician set forth in an August 2009 treatment note that "it is just as likely as it is not that this Veteran's reported symptoms while on active duty are related to a diagnosis of sleep apnea." In addition, the record contains the report of a line of duty determination dated in August 2010 (i.e., a DA Form 2173, Statement of Medical Examination and Duty Status). This form indicates that the Veteran was examined on March 20, 2009, and the examiner found that, among other conditions, the Veteran's obstructive sleep apnea was incurred in the line of duty and was likely to result in a claim against the Government for further medical care. The Veteran's Unit Advisor also signed the DA Form 2173 finding that the Veteran was on active duty at the time of the "injury" and the "SM suffers from Combat Related Injuries." He agreed with the examiner that the injury was considered to have been incurred in the line of duty. Finally, at a VA examination conducted in April 2009, the Veteran reported that he snored constantly while in the service and his fellow soldiers would comment about his snoring habit and, since its onset, it has been getting progressively worse. The examiner gave a diagnosis of severe sleep apnea but did not render a medical opinion as to its etiology. In contrast to the above evidence, the service treatment records are silent for any complaints of, findings consistent with or diagnosis of obstructive sleep apnea. The Board notes that 38 C.F.R. § 3.1(m) defines "line of duty" to mean an injury or disease incurred or aggravated during a period of active military, naval or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in the line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. The Board finds that the August 2010 line of duty determination that the Veteran's obstructive sleep apnea was incurred in the line of duty during his active duty service is binding on VA as there is no reason to find that it is patently inconsistent with the requirements of the laws administered by VA. The Board notes also that the RO had mistakenly taken the date of examination in March 2009 as the date of injury, which mistake is understandable based upon incorrect statements in the cover letter and on the form as to the date of injury; however, the Board finds that it is clear that the individuals signing the DA Form 2173 found that the injury occurred during the Veteran's active duty from February 2004 to April 2008, not during any period of active duty service while with the National Guard. The Board notes that the Veteran was stationed in Iraq from October 2006 to October 2007. In conclusion, the Board finds that the preponderance of the evidence is in favor of finding that the Veteran's obstructive sleep apnea is related to his active military service as there is a line of duty determination finding that it was incurred in the line of duty during his period of active duty, there is a medical opinion linking the Veteran's reported symptoms in service to a diagnosis of obstructive sleep apnea, there are lay statements as to symptoms in service that are competent and credible to lead to a diagnosis of obstructive sleep apnea, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and the only negative evidence against the claim are the silent service treatment records. For the foregoing reasons, therefore, the Board finds that service connection for obstructive sleep apnea is warranted. Tinnitus The Veteran has claimed service connection for tinnitus. Although he has not submitted a statement in support of his claim setting forth his contentions of why his tinnitus is related to service, such information may be gleaned from the available medical records. Service records further demonstrate that the Veteran's military occupational specialty (MOS) was Infantryman. The service treatment records show the Veteran was in a hearing conservation program due to his MOS. Consequently, the Board concedes that the Veteran was exposed to loud noises during service. The Board notes that service treatment records are silent for complaints of or symptoms consistent with tinnitus except for one document which is an undated health questionnaire that appears may have been completed by the Veteran around the time of his separation (given the handwritten note of "ETS" at the top of the page). On this document, the Veteran checked yes to the question of "Do you hear any ringing, clicking or buzzing in your ears?". In contrast, however, at other times when asked, such on Pre and Post Deployment Health Assessments, the Veteran did not report any ringing in his ears. The Board also notes that these records show that in, April 2004, he went to sick call reporting a sudden loss of hearing in the left ear. He was sent to audiology, who found a mild conductive hearing loss due to otitis media. VA treatment records show that, on audiology consultation in March 2009, the Veteran reported constant moderate bilateral tinnitus which became constant in 2004. He reported having two to three ear infections while on active duty. He reported military noise exposure, such as artillery, generators, mortars, explosions and gunfire, during which hearing protection was not used. Also in March 2009, at a Sleep Medicine consultation, the Veteran reported having constant ringing in his ears, left worse than right. On VA general medical examination in April 2009, on a review of systems, the examiner noted that Veteran's positive report of having bilateral tinnitus. However, he was not actually examined for this and no diagnosis or medical opinion was given. In contrast, on VA general medical examination in August 2010, there was no notation of tinnitus on a review of systems. The Board notes that this examination again was not for the purpose of examining the Veteran's tinnitus but for examining a left knee disorder and hypertension. In May 2013, the Veteran underwent VA audiology examination at which he reported having a constant ringing in the ears worse in the left ear than the right. He reported the ringing first began in 2004/2005. He reported military noise exposure to explosions and gunfire. The examiner opined that it is less likely than not that the Veteran's tinnitus is caused by or the result of military noise exposure. Her rationale was that the Veteran did not identify an injury, event, or illness associated with the onset of tinnitus. His records show no complaints of tinnitus, except for a copy of an undated questionnaire from his time in the National Guard according to the claims file. Previous compensation and pension exam dated August 16, 2010 recorded no complaint of tinnitus at that time. No significant shifts in hearing occurred while in service. Without hearing loss, an event, an injury, or an illness in service that is associated with the tinnitus, it was the opinion of the examiner that the current tinnitus is less likely as not caused by or related to military noise exposure. Finally, the record contains the report of a line of duty determination dated in August 2010 (i.e., a DA Form 2173, Statement of Medical Examination and Duty Status). This form indicates that the Veteran was examined on March 20, 2009, and the examiner found that, among other conditions, the Veteran's tinnitus was incurred in the line of duty and was likely to result in a claim against the Government for further medical care. The Veteran's Unit Advisor also signed the DA Form 2173 finding that the Veteran was on active duty at the time of the "injury" and the "SM suffers from Combat Related Injuries." He agreed with the examiner that the injury was considered to have been incurred in the line of duty. When, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). In the present case, the Board finds the VA examiner's opinion to be inadequate as it appears she failed to consider the positive evidence of record, to wit, the April 2009 VA examination report, the March 2009 VA treatment records, and the August 2010 line of duty determination. Consequently, the VA examiner's medical opinion lacks probative value. Furthermore, the Board finds that the Veteran is competent to testify that he has ringing in his ears and when it had its onset, which he has related multiple times as having been during his active service. The Board finds nothing in the record to contradict his competent and, therefore, credible testimony. Hence, the Board finds that the evidence is at least in equipoise and raises a reasonable doubt that the Veteran's tinnitus is related to his noise exposure during active military service. Giving the benefit of the doubt to the Veteran, therefore, the Board finds that service connection for tinnitus is warranted. ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs