Citation Nr: 18142761 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-46 161 DATE: October 16, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The evidence demonstrates the Veteran’s tinnitus began during a period of active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from August 1977 through August 1980 and from January 2009 through February 2010, with intermittent periods of active and reserve service until December 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for tinnitus 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 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection, a veteran must show: (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 or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)) (internal quotation marks omitted). Service connection may be granted for any disease initially 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) (2017). In addition, service connection for certain chronic diseases, including tinnitus, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence can be competent and 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 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. See Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). Due to the inherently subjective nature of tinnitus, it is capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). A veteran is also competent to report exposure to hazardous noise, when symptoms of tinnitus first manifested, and that the symptoms have continued since service. Layno v. Brown, 6 Vet. App. 465 (1994). In determining whether service connection is warranted for a disease or disability, VA must determine whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After considering all information and lay and medical evidence of record, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). First, the Board finds that there is current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In his 2012 claim, the Veteran provided competent lay testimony that he experiences ringing in his ears. Tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, the Board finds this testimony credible as he has been consistent throughout the appeal period. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). In addition, the January 2013 and October 2015 VA examiners also provided diagnoses of tinnitus. The Board thus finds the first element of service connection is met. Second, the Board finds that there was in-service onset. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In his 2012 claim, the Veteran reported that his tinnitus began during service. See Charles, 16 Vet. App. at 374. Although the Veteran has not been consistent in this regard, telling a 2013 VA examiner that his tinnitus began one year prior, but submitting written statements during the appeal period noting that tinnitus began during active duty, the Board finds this testimony credible as it is supported by other evidence of record. See Caluza, 7 Vet. App. at 511. Most notably, the Veteran’s DD-214s show he has served honorably during active duty as a scout pilot from 1987 through 1988, and as a Blackhawk helicopter pilot from 2009 through 2010. Thus, the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that the tinnitus is related to active service, as the most probative evidence indicates that the tinnitus began during service and has existed since that time. The 2013 and 2015 VA medical opinions of record are of no probative value as they did not consider the Veteran’s lay statements regarding onset and continuity of symptoms, which the Board has found both competent and credible. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (noting that where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). Therefore, the Board finds the most probative evidence demonstrates that tinnitus began during service and has existed since that time. Accordingly, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection sleep apnea Remand is required for a new VA opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Veteran underwent a VA examination in April 2013. The VA examiner reviewed a sleep study from 2012 and diagnosed obstructive sleep apnea. No nexus opinion was provided. Additionally, after this examination, the Veteran submitted March 2014 lay statements and a private medical statement. PA, who knew the Veteran prior to his service in Iraq, stated that prior to the Veteran’s service in Iraq, he exhibited no sleep issues, did not snore, did not wake up during the night, did not have trouble breathing, and did not show any signs of fatigue from loss of sleep. KG, who was in a relationship with the Veteran during the Veteran’s tour in Iraq, stated that when the Veteran returned, he exhibited snoring and waking up during the night on a very regular basis. GA, a fellow servicemember who was his roommate during training and mobilization, stated that the Veteran did not snore during the beginning of his tour in Iraq, but that the Veteran began snoring during the last three months in Iraq. GA also noted that he and the Veteran experienced in-service exposure to silicates, sandstorms, and exhaust gases. Finally, Dr. LS, stated that based on the Veteran’s history, it appeared that his sleep apnea began after his tour in the Middle East. Dr. LS did not have the claims file to review. The Board thus finds that as there is no nexus opinion of record that reviewed the relevant service treatment records and lay statements, a new examination is warranted. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran an examination to obtain an opinion regarding the etiology of the sleep apnea. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided, including, but not limited to: (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that sleep apnea, had onset in, or is otherwise related to, active military service, to include as based on beginning snoring during the last three months of his tour in Iraq, and as a result of various exposures during his service in Iraq. (b) The examiner must specifically address the following: 1) any STRs from the 2009-2010 period of active duty; 2) the lay statements from PA, KG, and GA; 3) the Veteran’s lay statements regarding onset of his symptoms and exposures to various chemicals and sandstorms; 4) the 2013 VA examination; and 5) the 2014 private medical statement from Dr. LS. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel