Citation Nr: 18142708 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-30 040 DATE: October 17, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for tinnitus is denied. REMANDED Entitlement to service connection for obstructive sleep apnea, claimed as secondary to service-connected other specified depressive and anxiety disorder, is remanded. Entitlement to service connection for diabetes mellitus, type II, claimed as secondary to service-connected other specified depressive and anxiety disorder, is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, he has a current diagnosis of PTSD related to verified in-service stressors. 2. Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to March 1987. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in November 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran, via his representative, submitted additional evidence for consideration in his appeal. 38 U.S.C. § 7105(e)(1). Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for PTSD. In addition to the general laws and regulations governing service connection, such also provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). As an initial matter, the Board notes that service connection is already in effect for other specified depressive and anxiety disorder. In this regard, such disability, as well as PTSD, is evaluated pursuant to the General Rating Formula for Mental Disorders. 38 C.F.R. 4.130, Diagnostic Codes 9434-9413, 9411. Therefore, while the Board herein awards service connection for PTSD, such will be rated with his other specified depressive and anxiety disorder for assigning a separate rating would be tantamount to pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran contends that he has PTSD as due to his in-service duties as a veterinarian technician that required him to put animals to sleep, a January 1985 injury he incurred while restraining a goat, and a September 1986 motor vehicle accident. As his service records reflect that his military occupational specialty was an animal care technician, and his service treatment records document the January 1985 and September 1986 events, such are considered verified. However, the evidence of record is in conflict as to whether the Veteran has a diagnosis of PTSD based on such verified in-service stressors. In this regard, in a January 2013 treatment record from, Dr. M.C., a private psychologist, the Veteran’s aforementioned stressors were noted and PTSD was diagnosed. Dr. M.C. based her diagnosis of PTSD on the Veteran’s report of euthanizing animals, which she specifically found met Criterion A of the diagnostic criteria for PTSD. She also discussed how the Veteran met the remaining individual criteria, to include Criterion D, for such a diagnosis. In a December 2013 evaluation, Dr. W.C., a private psychiatrist, noted the Veteran’s reported in-service stressors and diagnosed PTSD. In this regard, he opined that such was caused by previous trauma, to include the incidents involving the goat in January 1985 and motor vehicle accident in September 1986. In June 2014, the Veteran’s private treating nurse practitioner, D.V., indicated that he concurred with the diagnosis of PTSD based on the January 1985 incident with the goat. Further, in January 2015, Dr. J.A.C., a private physician, reported that he concurred with the aforementioned diagnoses of PTSD and opined that such was secondary to multiple injuries in service due to his motor vehicle accident. However, at the January 2015 VA examination, the examiner found that, while the Veteran’s reports regarding the January 1985 incident with the goat and September 1986 motor vehicle accident met Criterion A for a diagnosis of PTSD, she determined that his duties euthanizing animals did not and, moreover, Criterion D was not met. In this regard, the examiner stated that the Veteran did not meet the full DSM-5 or DSM-IV criteria for PTSD. However, she found that the Veteran’s symptoms of depression and anxiety, which were subsequently service-connected, had some connection to distressing experiences with his military job as a veterinarian technician. Based on the foregoing, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran has a diagnosis of PTSD based on a verified in-service stressor. In this regard, his private treatment providers and the February 2015 VA examiner are all competent medical professionals who considered all relevant facts and accepted medical principles in reaching their conclusions. Consequently, the foregoing opinions are entitled to equal probative weight. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that he has a current diagnosis of PTSD related to verified in-service stressors. Thus, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for tinnitus. In addition to the general laws and regulations governing service connection, such also provide that, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic disease of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). However, in the instant case, such acoustic trauma is not shown and, therefore, the laws and regulations pertinent to presumptive service connection for a chronic disease are inapplicable. Rather, the Veteran has contended that he has tinnitus as a result of an in-service September 1986 motor vehicle accident. As an initial matter, the Board notes that the Veteran, as a lay person, is competent to report the presence of tinnitus and such diagnosis has been confirmed by the medical evidence of record. Furthermore, his service treatment records reflect a September 1986 motor vehicle accident. In this regard, treatment records at the time of such accident, and subsequent thereto, reflect a whiplash injury and ongoing complaints of neck pain and headaches. Such records are entirely negative for any complaints, treatment, or a diagnosis referable to tinnitus. In January 2015, the Veteran was afforded a VA examination so as to determine the nature and etiology of his tinnitus. In this regard, the examiner reviewed the record and interviewed the Veterans. Specifically, he noted that the aforementioned service treatment records reflected a motor vehicle accident in September 1986 with subsequent complaints of neck pain and headaches. It was observed that the Veteran was rear-ended with his head turned to the left. Examination after the accident showed left cervical and trapezius spasm, but was otherwise normal, and a whiplash injury was diagnosed. There was no mention of a head injury. Service treatment records were noted to be negative for complaints of tinnitus. Post-service records reflect that the Veteran denied having tinnitus in May 2011. In May 2013, he reported a history of tinnitus for years, which he subsequently indicated started 10 years previously. In October 2014, the Veteran indicated that he had tinnitus prior to the motor vehicle accident, but it worsened after it and has progressively worsened over the years. The examiner then noted that tinnitus has been described as part of post-concussive syndrome, and the onset is generally at the time of, or shortly following, the inciting injury. Usually the symptoms dissipate over time, but may become chronic in some individuals. He further indicated that there was no evidence of tinnitus in the Veteran’s service treatment records or many years thereafter. Therefore, the examiner opined that the Veteran’s tinnitus was less likely than not related to the in-service motor vehicle accident. The Board affords great probative weight to the January 2015 VA examiner’s opinion. In this regard, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Furthermore, there is no medical opinion to the contrary. In this regard, the Board has considered the Veteran’s argument that his tinnitus is related to his in-service motor vehicle accident. While he is competent to report such accident and his complaints of tinnitus, the Board finds he is not competent to offer an opinion as to whether his tinnitus is related to such accident since he does not possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorder, to include whether such is related the previously described in-service injury, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology his tinnitus, and, consequently, his opinion on such matter is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Furthermore, while the Veteran has reported the complaints of tinnitus in service that have continued to the present time, the Board finds that such statements have been inconsistent and, consequently, are not credible. In this regard, the Veteran’s service treatment records are negative for complaints, treatment, or a diagnosis referable to tinnitus. Moreover, post-service treatment records, to include those filed in the 1980’s in connection with his original claim for service connection, are entirely negative for any reference to tinnitus until 2013. In fact, he specifically denied experiencing tinnitus in May 2011. Moreover, once he reported it in May 2013, he gave conflicting statements as to the date of onset, to include 10 years previously, and prior to his military service. Therefore, the Board finds that the Veteran’s reports of tinnitus in service, which have continued to the present time, to be inconsistent and, thus, not credible. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the veteran in weighing evidence). Therefore, the Board finds that tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. Consequently, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for tinnitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 8 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. REASONS FOR REMAND In addition to the general laws and regulations governing service connection, such also provide that service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 3. Entitlement to service connection for obstructive sleep apnea, claimed as secondary to service-connected other specified depressive and anxiety disorder. 4. Entitlement to service connection for diabetes mellitus, type II, claimed as secondary to service-connected other specified depressive and anxiety disorder. The Veteran contends that his service-connected psychiatric disability has caused or aggravated his currently diagnosed obstructive sleep apnea and diabetes mellitus, type II. In support of his claims, in January 2015, Dr. J.A.C., a private physician, indicated that the Veteran may have suffered a closed head injury at the time of his in-service motor vehicle accident, and research suggested that comorbidities of musculoskeletal injuries, PTSD, anxiety, and mild traumatic brain injury factor highly with sleep issues in the military population. Consequently, he opined that the Veteran’s obstructive sleep apnea may have begun with head trauma secondary to the September 1986 motor vehicle accident, and PTSD and anxiety have also probably contributed to the evolution of the sleep problem. Similarly, Dr. J.A.C. opined that it is highly probable that the Veteran’s diabetes mellitus type II is probably due to long term chronic stress secondary to multiple back and neck injuries, anxiety, and PTSD. However, as noted previously, there is no evidence in the service treatment records that the Veteran’s September 1986 motor vehicle accident resulted in a closed head injury or traumatic brain injury. Furthermore, Dr. J.A.C.’s opinions regarding secondary service connection are couched in speculative terms and, thus, are inadequate to establish service connection. Furthermore, in April 2018, Dr. M.B. noted that psychiatric disorders are commonly associated with obstructive sleep apnea, and the Veteran’s treatment records reflect that his anxiety, as well as his prescribed anti-depressants, affects his sleep. She also indicated that the Veteran reported that he cannot use his CPAP due to his depressive disorder as such makes him feel claustrophobic. Dr. M.B. stated that the Veteran’s inability to use his CPAP every night greatly aggravates the effects of his sleep apnea as he is very tired and will fall asleep frequently the next day. Ultimately, she opined that the Veteran’s depressive disorder, anxiety disorder, and anti-depressants more likely than not aided in the development of, and permanently aggravates, his obstructive sleep apnea. However, Dr. M.B. only described a temporary worsening of sleep apnea symptoms the day after a night where the Veteran could not use his CPAP. It does not show that the obstructive sleep apnea itself was aggravated. Furthermore, while the Veteran has submitted numerous medical treatises suggesting a relationship between psychiatric disorders and obstructive sleep apnea, such do not address the individual facts in this case and do not include an opinion specific to the Veteran. Nonetheless, the Board finds that the foregoing has triggered VA’s duty to obtain an opinion as to whether the Veteran’s service-connected psychiatric disability has caused or aggravated his obstructive sleep apnea and/or diabetes mellitus, type II. Therefore, a remand is necessary in order to obtain such opinion. The matters are REMANDED for the following action: Forward the record and a copy of this remand to an appropriate VA examiner to offer an opinion as to the etiology of the Veteran’s obstructive sleep apnea and diabetes mellitus, type II. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s obstructive sleep apnea is caused or aggravated by his service-connected psychiatric disability (other specified depressive, anxiety disorder, and PTSD), to include any medications (such as anti-depressants) taken for such disability? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner should consider the January 2015 opinion from Dr. J.A.C., the April 2018 opinion from Dr. M.B., and the numerous medical treatises suggesting a relationship between psychiatric disorders and obstructive sleep apnea. (B) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s diabetes mellitus, type II, is caused or aggravated by his service-connected psychiatric disability (other specified depressive, anxiety disorder, and PTSD)? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner should consider the January 2015 opinion from Dr. J.A.C. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson