Citation Nr: 1759982 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-46 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: John Dorrity WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to August 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2009, March 2013, and October 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey (RO). In a March 2016 decision, the Board denied the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2017 Memorandum Decision, the Court affirmed the Board's March 2016 denial of the claim for entitlement to service connection for bilateral hearing loss but vacated its denial of his claim for entitlement to service connection for tinnitus. The tinnitus claim was remanded to the Board for additional consideration. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2016 with regard to the issues of entitlement to service connection for obstructive sleep apnea and entitlement to a TDIU. A transcript of that hearing is associated with the claims file. The issue of entitlement to service connection for obstructive sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Granting the benefit of the doubt to the Veteran, the currently demonstrated tinnitus was caused by in-service exposure to acoustic trauma in connection with his duties. 2. The Veteran meets the schedular criteria for assignment of a TDIU and is reasonably shown to be unable to secure or follow a substantial gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues of entitlement to service connection for tinnitus and entitlement to a TDIU. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). This is so because the Board is taking action favorable to the Veteran by granting the issues at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). I. Tinnitus Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Court of Appeals for Veterans Claims (Court) has held that lay evidence is competent and may be sufficient to establish a diagnosis of a condition when 1) a lay person is competent to identify the medical condition; 2) the lay person is reporting a contemporaneous medical diagnosis; or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Court has specifically held that tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds the Veteran's statements regarding his in-service noise exposure to be credible based on his military occupational specialty. In that regard, the Veteran's DD Forms 2014 reflect that his military occupational specialty was security police. His service personnel records show that his military occupational specialty was machine gunner from January 1969 to January 1970. The Board also finds the Veteran's lay statements with regard to his in-service tinnitus symptoms to be credible based on the consistent nature of his statements. Although the Veteran's service treatment records do not document complaints of or treatment for tinnitus during service, they do not reflect any instance in which the Veteran denied such symptoms. The post-service records corroborate the Veteran's reports of a long history of tinnitus. While the first medical evidence in the claims file documenting complaints of tinnitus are shown in September 2008 VA treatment records, at that time the Veteran reported a history of occasional bilateral tinnitus for many years. Additionally, he reported military noise exposure from combat in Vietnam and denied any occupational or recreational noise exposure. A VA medical examination was conducted in June 2009. The Veteran reported constant bilateral tinnitus since military discharge. He also noted in-service noise exposure from live aircraft and weaponry noise without the use of ear protection. The VA examiner conducted an audiological examination and diagnosed constant bilateral tinnitus. After reviewing the claims file, the VA examiner opined that the Veteran's tinnitus was not caused by or a result of active duty service. The examiner stated that there was "no evidence documenting that tinnitus was incurred in or aggravated by active-duty military service." The examiner also indicated that there was "no current ear-related service connected condition which would support a relationship between tinnitus onset and active-duty military service." Although the June 2009 VA examiner opined that the Veteran's tinnitus was not related to service, the opinion provided does not have significant probative value. The examiner did not address the Veteran's competent and credible lay statements regarding experiencing tinnitus during service and consistently since service. The Veteran's lay statements are particularly important in this instance because the examiner relied heavily on the finding that there was "no evidence documenting that tinnitus was incurred" during service. This statement shows that the VA examiner relied on the lack of evidence documented in the service treatment records to support the negative opinion and did not consider the Veteran's lay statements regarding in-service symptomatology. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Additionally, the examiner's opinion cites "no current ear-related service connected condition which would support a relationship between tinnitus onset and active-duty military service." This statement suggests that another "ear-related service connected condition" is required to show a relationship between the Veteran's current tinnitus and his active duty service. This is simply not true, as entitlement to service connection for tinnitus does not require another "ear-related service connected condition" to be warranted. Further, the examiner did not explain how this conclusion shows that the Veteran's tinnitus is not related to his in-service acoustic trauma. For these reasons, the June 2009 VA opinion is of little probative value. The Veteran underwent another VA audiological examination in October 2013, which was conducted by the same examiner who provided the June 2009 VA opinion. At that time, the Veteran again reported that he began experiencing bilateral tinnitus during military service and that he had experienced it continuously since that time. After reviewing the Veteran's claims file, the VA examiner opined that the Veteran's tinnitus was at least as likely as not "a symptom associated with the hearing loss" which the examiner found not related to the Veteran's military service. The examiner explained that "[t]he condition of tinnitus, as it relates to auditory dysfunction, occurs as a secondary symptom of hearing loss. Since the veteran's hearing sensitivity is considered less likely than not related to active-duty service, veteran's tinnitus is also considered less likely than not related to active-duty service." The Board also finds the October 2013 VA opinion to be of little probative value. The examiner provided no explanation for the statement that tinnitus was merely "a symptom associated with the hearing loss," and could not have occurred independently of the Veteran's hearing loss as a separate injury caused by in-service noise exposure. As observed by the Court in its March 2017 Memorandum Decision, the Court has held "that tinnitus is a disease of the central nervous system that may be a symptom of hearing loss in certain cases, but may have other causes as well." The Court also noted that the October 2013 VA examiner "offered no medical explanation for his premise that [the Veteran's] hearing loss caused his tinnitus." The Court observed that VA has acknowledged that other conditions besides acoustic trauma can cause tinnitus, such as kidney disease, and that the Veteran is currently service-connected for kidney disease. See Fountain v. McDonald, 27 Vet. App. 258, 260 (2015). Ultimately, the Board finds the October 2013 VA opinion inadequate as it fails to provide sufficient explanation and rationale to support the opinion that the Veteran's tinnitus is not related to his active duty service. Having reviewed the evidence, the Veteran attributes his tinnitus to military noise exposure. He has explained that he first began experiencing tinnitus during service, and that it continued after service discharge. The Board finds the Veteran to be a credible historian, and his statements are given great probative weight. A Veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a); see also 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to all pertinent medical and lay evidence). Here the Veteran has competently and credibly stated that he began experiencing tinnitus in service. He has competently and credibly explained that his tinnitus symptoms began during service and continued regularly since that time. His statements throughout the record have been consistent, and at no time did the Veteran deny symptoms of tinnitus during service or continuously since that time. As such, the Veteran's statements are highly probative and, with consideration of the benefit of the doubt, the Board concludes that his tinnitus had its onset during active duty service. While there are negative medical opinions in this case, the Veteran's credible statements as to his symptoms are found to be more probative and any reasonable doubt is resolved in the Veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. TDIU Regarding employability, the Board finds that the Veteran meets the schedular criteria for assignment of a TDIU. The Veteran's service-connected disabilities include hypothyroidism, rated as 30 percent disabling from June 1, 1973; PTSD, rated as 30 percent disabling from March 26, 2009; diabetes mellitus, type II, with onychomycosis and erectile dysfunction, rated as 20 percent disabling from June 15, 2007; peripheral neuropathy of the left upper extremity associated with diabetes mellitus, type II, rated as 10 percent disabling from March 26, 2009; peripheral neuropathy of the right upper extremity associated with diabetes mellitus, type II, rated as 10 percent disabling from March 26, 2009; peripheral neuropathy of the left lower extremity associated with diabetes mellitus, type II, rated as 10 percent disabling from March 26, 2009; peripheral neuropathy of the right lower extremity associated with diabetes mellitus, type II, rated as 10 percent disabling from March 26, 2009; and microalbuminuria associated with diabetes mellitus, type II, rated as noncompensable from April 27, 2006. For the purposes of a TDIU claim, the Veteran's peripheral neuropathy of the left and right upper extremities is considered one disability, and the Veteran's peripheral neuropathy of the lower extremities is considered one disability as well, because they affect both extremities. See 38 C.F.R. § 4.16(a)(1) (2017). Applying the bilateral factor to the Veteran's peripheral neuropathies, and combining them with the Veteran's rating for diabetes, the schedular criteria for TDIU have been met since March 26, 2009. With regard to the Veteran's employability, the Veteran testified during his August 2016 hearing before the Board that he last worked in 2009, and that he retired due to the severity of the symptoms of his service-connected psychiatric disability and his service-connected diabetes mellitus, type II, and associated peripheral neuropathies. The Veteran has also submitted several opinions from his VA treating psychologist which state that the Veteran is unemployable due to his service-connected PTSD. In a September 2011 treatment record, S. Evers, Ph.D., reported that the Veteran's psychiatric symptoms had a "significant negative impact on his ability to function both vocationally and interpersonally" and that the "intensity and severity of his PTSD symptoms has made him functionally unemployable." In April 2013, Dr. Evers opined that, due to the "nature and severity of his psychological condition [the Veteran] is functionally unemployable at this time and his psychological condition directly led to his early retirement." Dr. Evers explained that the Veteran "took early retirement rather than face disciplinary action at work" and that, since leaving his job, "he has been unable to attain and maintain gainful employment. In my professional opinion he is functionally 100% disabled as a result of his psychological condition and his significant medical problems." In March 2015, Dr. Evers noted that, due to his psychiatric symptoms, the Veteran "is currently and for the foreseeable future unemployable." Although previous VA examinations did not produce findings tending to indicate that the Veteran is unemployable due to service-connected disabilities, given the specificity of the opinions provided by Dr. Evers and resolving any reasonable doubt in the Veteran's favor, he is shown to be unable to secure or follow a substantial gainful occupation. 38 U.S.C. §§ 4.3, 4.16a. In light of the Veteran's schedular eligibility for TDIU under 38 C.F.R. § 4.16(a), the multiple opinions provided by Dr. Evers, and resolving reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for tinnitus is granted. Entitlement to a TDIU is granted. REMAND The Veteran contends that service connection for obstructive sleep apnea is warranted, and that his service-connected PTSD caused or aggravated his obstructive sleep apnea. He also contends that his obstructive sleep apnea is directly related to service, and that he experienced symptoms of sleep apnea during service. Specifically, he testified that he snored during active duty service. In July 2015, the Veteran was provided with a VA examination to determine the etiology of his obstructive sleep apnea. The July 2015 VA examiner opined that the Veteran's obstructive sleep apnea was "less likely than not due to PTSD" because there was "no medical explanation as to obstructive sleep apnea being caused by PTSD." Initially, the Board observes that the VA examiner did not address the possibility that the Veteran's obstructive sleep apnea may have been aggravated by his service-connected PTSD. Additionally, the July 2015 VA opinion does not provide an opinion as to whether the Veteran's obstructive sleep apnea is directly related to service. Accordingly, a new VA examination is necessary to determine whether the Veteran's obstructive sleep apnea is related to his military service, and whether it was caused or aggravated by his service-connected PTSD. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Allen v. Brown, 7 Vet. App. 439, 449 (1995). In any event, in light of the TDIU finding, the Veteran, in consultation with his current representative, may wish to withdraw this claim. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA examination by an appropriate physician to determine the etiology of his obstructive sleep apnea. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran's lay statements and testimony, the VA examiner must respond to the following: *Is it at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's obstructive sleep apnea was caused by or incurred during his active duty service? *Is it at least as likely as not that the Veteran's obstructive sleep apnea was caused or aggravated by the Veteran's service-connected PTSD. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 2. The Veteran must be advised of the importance of reporting to the scheduled examination and of the possible adverse consequences, to include the denial of his claim, for failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2017). 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be re-adjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs