Citation Nr: 18151150 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-36 673 DATE: November 16, 2018 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is denied. REMANDED Service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The weight of the evidence is at least in equipoise as to whether the Veteran’s tinnitus became manifest in service and has persisted since. 2. The weight of the evidence is against a finding that a hearing loss disability was manifested in service or in the first post-service year, or that such disability is etiologically related to a disease, injury or event in service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. § § 3.303, 3.307, 3.309. 2. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1983 to April 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision. 1. Service connection for tinnitus is granted. The Veteran contends that he has tinnitus due to noise trauma in service. He reported in his Notice of Disagreement dated June 2014 that while serving in Desert Storm he was responsible for bringing ammunition to the front lines while a member of Bravo Company. He stated that while on the front lines he was exposed to extensive noise exposure, including extremely loud explosions. The Veteran’s service treatment records contain no mention of ringing in the ears or tinnitus. In essence, tinnitus is a disability that is diagnosed based on self-reports (by the person experiencing it and is incapable of objective confirmation). The Veteran is competent and eminently qualified to establish by his own accounts that he has tinnitus (and has had it continuously since service). It is not in dispute that he has tinnitus. The evidence supports that the Veteran’s tinnitus is a result of in-service events. On February 2015 VA examination the examiner noted the Veteran’s reported onset of tinnitus during military service. The examiner opined that because the Veteran had normal hearing during the course of his military service that tinnitus is less likely than not due to military service. But she also opined that tinnitus can be present without hearing loss and that the Veteran reported military noise exposure. The examiner did not opine on an alternative etiology for the Veteran’s tinnitus. Because tinnitus (as an organic disease of the nervous system) is listed as a chronic disease in 38 C.F.R. § 3.309(a), service connection may be established by continuity of symptoms. See 38 C.F.R. § 3.303(b). Therefore, what the Board must decide is the question of the Veteran’s credibility (in his accounts that his tinnitus stemmed from his service), which the February 2015 VA examination did not adequately address. The Board finds no reason to question the credibility of the Veteran’s accounts. They are reasonably consistent with the circumstances of his service, and are not directly contradicted by any clinically recorded data. Given the above, and resolving reasonable doubt in the Veteran’s favor (as required, see 38 U.S.C. § 5107; 38 C.F.R. § 3.102), the Board finds that continuity of tinnitus is shown, and that service connection for tinnitus is warranted. 2. Service connection for bilateral hearing loss is denied. The Veteran contends his bilateral hearing loss is due to acoustic trauma in service. He reported in his Notice of Disagreement dated June 2014 that while serving in Desert Storm he was responsible for bringing ammo to the front lines. As noted above the Veteran stated in his Form 9 dated July 2016 the Veteran stated that he knows for a fact that his hearing problems stemmed from guns and cannons. For VA purposes, a hearing loss disability is defined as: “when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As demonstrated by the examiner in the Veteran’s February 2015 VA examination, the Veteran does have a current diagnosis of bilateral hearing loss. Audiometry on enlistment examination in July 1983 revealed that puretone thresholds, in decibels, were: 500 1000 2000 3000 4000 R 10 5 5 5 0 L 0 0 10 0 0 Audiometry in April 1992 on separation examination revealed that puretone thresholds, in decibels, were: 500 1000 2000 3000 4000 R 5 5 0 5 0 L 5 5 10 0 10 On February 2015 VA examination audiometry, puretone thresholds, in decibels, were: 500 1000 2000 3000 4000 R 45 45 40 55 45 L 30 45 50 50 45 The examiner opined, that the Veteran’s audiological exams did not show a significant [puretone] shift in his 8 years of military service and therefore the bilateral hearing loss is less likely than not related to military service. The examiner did not provide an alternate etiology. To substantiate this claim there must be competent evidence of a nexus between the current bilateral hearing loss disability and Veteran’s service/exposure to noise therein. A hearing loss disability is not shown to have been manifest in service or documented post-service until many years following the Veteran’s separation from service. Consequently, service connection for hearing loss on the basis that it became manifested in service and persisted or as a chronic disease presumptive basis (under 38 U.S.C. §§ 1112, 1137) is not warranted. As there is no evidence of continuity of hearing loss post-service prior to decades after discharge (and existence of a sensorineural hearing loss (SNHL) disability is beyond the capability of a lay observation, but under 38 C.F.R. § 4.85 must be established by diagnostic studies), service connection under a continuity theory of entitlement is also not warranted. The etiology of the hearing loss disability is a medical question. It is beyond the scope of common knowledge or capability of lay observation, but requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The only competent (medical) evidence in the record that addresses the question is the opinion by the February 2015 examiner. The consulting provider is a medical professional competent to offer the opinion; expressed familiarity with the record; included rationale that cites to accurate factual data. The opinion has probative value in this matter, and in the absence of competent (medical) evidence to the contrary is persuasive. The Veteran has not submitted in support of his claim any probative (medical opinion) evidence that relates his current hearing loss disability to his remote exposure to noise during service. The Veteran is a layperson, and does not profess to have medical expertise (or cite to supporting medical opinion or literature); his own opinion is not probative evidence in this matter. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). For the above reasons, the preponderance of the evidence is against the claim. Accordingly, the appeal in this matter must be denied. REASONS FOR REMAND Service connection for obstructive sleep apnea is remanded. There is conflicting evidence in the record regarding the etiology of the Veteran’s obstructive sleep apnea. On August 2013 VA sleep disorder examination, the examiner opined that the Veteran’s obstructive sleep apnea (OSA) was not incurred in or caused by military service. He opined that it could not be related to military service because it was not diagnosed for 20 years after service and the separation examination was silent on sleep related issues. However, the Veteran submitted two buddy statements, one from his mother and one from an ex-partner which stated that he was experiencing symptoms that are associated with OSA such as snoring during his time in the military. Additionally, on his July 2016 statement, the Veteran reported that his sleep apnea is caused by many things, including night terrors which are from his memories of serving in a war zone. The examiner’s opinion was based on review of records which included only service treatment records from the Veteran’s service and his separation examination. The examiner did not discuss the lay evidence that the Veteran submitted to establish in-service onset of OSA, nor did the examiner discuss any etiology that would be more likely. The rationale for the opinion does not acknowledge the Veteran’s reports that he developed OSA as a result of service or the buddy statements from the Veteran’s family members. As the opinion does not acknowledge the lay statements in the record, it is inadequate for rating purposes and another medical opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following actions: 1. Arrange for the Veteran to be examined by an appropriate examiner to determine the likely etiology of his OSA. The claims file must be reviewed by the examiner in conjunction with the examination. The examiner should provide an opinion that responds to the following: (Continued on the next page)   2. Identify the likely etiology for the Veteran’s OSA. Specifically, is it at least as likely as not (a 50 percent or better probability) that it is related directly to his service (as due to disease, injury, event, or based on onset, therein)? The examiner must include rationale with all opinions. The examiner is also asked to comment on (express agreement or disagreement with) the opinions offered by the August 2013 VA examiner (include rationale for the agreement or disagreement with each, and must acknowledge the Veteran’s July 2014 lay statement that his OSA is related to night terrors which are caused by his service in a war zone and the March 2013 lay statements from the Veteran’s mother and ex-partner that they observed snoring as well as the stoppage of breathing while the Veteran was asleep, in-service). ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Robert Cordingley, Associate Counsel