Citation Nr: 18147399 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 15-02 955 DATE: November 6, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran’s current tinnitus is related to service. 2. The probative evidence of record is at least in equipoise as to whether the Veteran’s current obstructive sleep apnea was incurred during his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from March 1977 to March 1981, September 1981 to September 1983, September 1985 to May 2001, and again from November 2009 to June 2010. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease manifests to a degree of 10 percent or more within 1 year from the date of separation from service, that disease is presumptively service-connected. 38 C.F.R. §§ 3.303(b), 3.307(a)(3). Tinnitus is a chronic disease as defined by 38 C.F.R. § 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258 (2015). As the Veteran’s tinnitus is listed as a chronic disease (organic disease of the nervous system) under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology apply in this case. When a disease is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for tinnitus The Veteran claims entitlement to service connection for tinnitus. Specifically, the Veteran contends that exposure to heightened levels of military noise, to include jet engines, resulted in the incurrence of tinnitus during the Veteran’s period of active service. In a May 2011 VA hearing examination, the Veteran asserted that his tinnitus began in either 1998 or 1999, during his period of military active service. The Veteran’s military service records confirm the Veteran served as a jet engine mechanic during his active military service. In turn, the Board acknowledges that the Veteran was exposed to hazardous levels of military during his active service. The Veteran is competent report the onset of ringing in his ears. Kahana, 24 Vet. App. at 435. His report that the ringing in his ears began in service and has continued since then is probative evidence in favor of his claim. In the May 2011 VA hearing examination, the VA examiner noted that the Veteran’s normal hearing examination levels did not support a claim of noise-induced tinnitus. The VA examination is probative evidence against the Veteran’s claim. The Board finds that the overall weight of the evidence is at least in equipoise as to whether the Veteran’s tinnitus is related to his period of active service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49 (1990). Accordingly, service connection for tinnitus is granted. 2. Entitlement to service connection for obstructive sleep apnea The Veteran claims entitlement to service connection for obstructive sleep apnea. Specifically, the Veteran contends that his obstructive sleep apnea was incurred during his active military service. The Board acknowledges that the Veteran has a current diagnosis of obstructive sleep apnea. Following and October 2011 sleep study, the Veteran was diagnosed with severe obstructive sleep apnea by his VA treatment providers. The Board further acknowledges that the Veteran complained of sleep disturbances during his active military service. The Veteran’s service treatment records note that he complained of and was treated for sleep disturbances, including insomnia, in February 2010, March 2010, and April 2010. In November 2014, after reviewing the Veteran’s medical history and claims file, a VA physician opined that the Veteran’s current sleep apnea was unrelated to his complaints of insomnia during active service. The VA physician reasoned: Obstructive sleep apnea occurs when the muscles in the back of your throat relax too much to allow normal breathing. These muscles support structures including the soft palate, the uvula – a triangular piece of tissue hanging from the soft palate, the tonsils and the tongue. When the muscles relax, your airway narrows or closes as you breathe in and breathing may be inadequate for 10 to 20 seconds. This results in the characteristic apneas and hypopneas caused by repetitive collapse of the upper airway during sleep. Commentary: This means that the symptoms or complaints by an individual are not sufficient to make the diagnosis as other situations may mimic a sleep apnea presentation. Additionally, insomnia does not affect the muscles in the back of one’s the throat so as to result in the development of sleep apnea. The November 2014 VA medical opinion is probative medical evidence against the Veteran’s claim. Conversely, in November 2017, the Veteran submitted a medical opinion from his private treatment provider indicating that it is more likely than not that the Veteran’s sleep apnea was incurred during his active service. After review of the Veteran’s medical records and service treatment records, the private physician reasoned that it is not uncommon to see patients with both insomnia and obstructive sleep apnea. The physician further reasons that obstructive sleep apnea can cause insomnia, and it is likely that the Veteran’s insomnia during service was an underlying problem of the Veteran’s obstructive sleep apnea. Finally, the private physician states, it would be highly unlikely to develop new onset severe obstructive sleep apnea within 18 months, without significant weight gain or a stroke. The Board finds that the November 2017 private medical opinion is probative medical evidence in favor of the Veteran’s claim. Both of the above detailed medical opinions are well-reasoned, authored after review of the Veteran’s medical and service treatment records, and provide competent and credible evidence. The Board finds that the overall weight of the evidence is at least in equipoise as to whether the Veteran’s obstructive sleep apnea was incurred during his period of active service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49 (1990). (Continued on the next page)   Accordingly, service connection for obstructive sleep apnea is granted. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel