Citation Nr: 18159344 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-38 851 DATE: December 18, 2018 ORDER An earlier effective date of April 23, 2013 for service connection for tinnitus is granted. Service connection for a right eye disability is denied. Service connection for a left eye disability is denied. Service connection for bilateral hearing loss is denied. Service connection for sleep apnea is denied. Secondary service connection for headaches, aggravated by service-connected tinnitus, is granted. Secondary service connection for an acquired psychiatric disability, including an adjustment disorder and depressive disorder (acquired psychiatric disability), aggravated by secondary to service-connected tinnitus, is granted. FINDINGS OF FACT 1. The Veteran filed a fully-developed, original claim for tinnitus on April 23, 2014; and the probative evidence of record reflects that he has had bilateral tinnitus since 1979. 2. The Veteran’s right eye disability is not related to his active service. 3. The evidence of record has not shown a current diagnosis of a left eye disability. 4. The evidence of record has not shown that the Veteran has bilateral hearing loss, for VA purposes. 5. The evidence of record has not shown a current diagnosis of sleep apnea. 6. The Veteran’s headaches are permanently aggravated by his service-connected tinnitus. 7. The Veteran’s non-specified depressive disorder is permanently aggravated by his service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of April 23, 2013, for grant of service connection for tinnitus, have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). 2. The criteria for service connection for a right eye disability have not been met. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3102 (2017). 3. The criteria for service connection for a left eye disability have not been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303, 3.385 (2017). 5. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303, 3.385 (2017). 6. The criteria for service connection for headaches, as secondary to service-connected tinnitus, have been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.310 (2017). 7. The criteria for service connection for an acquired psychiatric disability, as secondary to service-connected tinnitus have been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to April 1981. This appeal comes before the Board of Veterans’ Appeals (Board) from July 2014 and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Earlier Effective Date The Veteran asserts that he should have been awarded an effective date of April 23, 2013, for service connection for tinnitus, pursuant to Public Law 112-154. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Furthermore, the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (the Act), Public Law 112-154, Section 506, 126 Stat. 1165 was signed into law on August 6, 2012, thereby amending 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013, through August 5, 2015. Under the Act, an effective date of up to one year prior to submission of the claim may be assigned when evidence demonstrates that the disability existed for one year prior to submission of the claim. The evidence of record clearly indicates that on April 23, 2014, the Veteran filed an original, fully developed claim for bilateral tinnitus. Furthermore, the Board finds that the evidence of record shows that the Veteran’s bilateral tinnitus has existed since 1979, during his time in service. Thus, in this regard, the criteria for Section 506 of the Act are satisfied. Accordingly, an earlier effective date of April 23, 2013, for a grant of service connection for tinnitus is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Right Eye Disability At his May 2014 VA examination for eye conditions, the Veteran reported that cleaning solvent splashed in his right eye during his period of active service. Service treatment records (STRs) include a March 1980 health record, which indicates that the Veteran was cleaning an aircraft when cleaning solvent splashed into his right eye. This treatment note additionally reflects that the sclera (white portion of the eye) was “minimally bloodshot.” In a February 1981 report of medical history form, the Veteran indicated that he was unsure of whether he had any history of an eye injury. However, no eye disabilities were documented in his February 1981 report of medical examination for separation from service. The May 2014 VA examination for eye conditions reflects that the Veteran was diagnosed with right eye corneal scar. The VA examiner opined that the Veteran’s right eye condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The VA examiner’s rationale was that the Veteran exhibits 2 small corneal scars in the right eye, which are likely the result of a severe viral conjunctivitis. He further explained that it is unlikely that the incident where solvent was splashed in the right eye caused the formation of the corneal scar because at the time, the treatment record noted that there was minimal epithelial disruption, and that the condition cleared without complication. The VA examiner further observed that thereafter, no follow-up on this condition was required or sought. In this regard, the Board finds that the preponderance of the evidence is against this claim. The most probative medical evidence of record for the claim for this right eye disability is this May 2014 VA opinion, as it provides an adequate rationale, which provides an alternative explanation for the Veteran’s right eye disability, as well as particular reasons why the Veteran’s in-service injury is not correlated to his current right eye disability. Further, STRs do not provide any other evidence of an injury, complaint or treatment for a right eye condition for the remainder of his active service, nor has the Veteran asserted that any other injuries, complaints or treatment for the right eye occurred. Thus, the benefit-of the-doubt rule, which the Board has considered, is inapplicable, and based on the foregoing, service connection for a right eye disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017). 2. Bilateral Hearing Loss, Left Eye Disability and Sleep apnea The Veteran’s April 2014 fully-developed claims, include and are not limited to, service connection for bilateral hearing loss, a left eye disability and sleep apnea. Generally, as it pertains to service connection claims for hearing loss, impaired hearing, for VA purposes, shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). A May 2014 VA examination for hearing loss entails audiometric results, which reflect that puretone thresholds for the right ear were 25 decibels (dB) at 500 Hertz (Hz); 15dB at 1000Hz; 20dB at 2000Hz; 15dB at 3000Hz; and 15dB at 4000Hz. Puretone thresholds for the left ear were 25dB at 500Hz; 25dB at 1000Hz; 25dB at 2000Hz; 25dB at 3000Hz; 20dB at 4000Hz; 40dB at 6000Hz. Speech discrimination for the right ear was at 96 percent, and for the left ear, also at 96 percent. Thus, these audiometric results show that there is no hearing loss, for VA purposes. Additionally, as no other medical evidence of record has shown audiometric results for the hearing that reflect findings to the contrary, the Board finds that the Veteran does not have a bilateral hearing loss disability, for VA purposes. Additionally, the medical evidence of record does not reflect a current diagnosis of a left eye disability or sleep apnea. Thus, with no evidence of a current diagnosis, the service connection claims for bilateral hearing loss, a left eye disability and sleep apnea must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that “[i]n the absence of proof of a present disability there can be no valid claim.”). 3. Headaches The Veteran asserts that his headaches have been aggravated by his service-connected tinnitus. In support of his claim, the Veteran has submitted a disability benefits questionnaire (DBQ) and medical opinion from a private physician, Dr. H.S. The April 2015 DBQ reflects that the Veteran has a diagnosis of migraines, including migraine variants. Dr. H.S. opined that it is as likely as not that the headaches are permanently aggravated by his service-connected tinnitus. As the rationale for his opinion, Dr. H.S. explained that the Veteran reported headaches occurring 2 – 3 times a week, which last for a full day, sometimes lasting up to 2 days. He also noted that the Veteran reported that he experiences pain behind his eyes, temple, and back of the head; and that he becomes nauseous, sensitive to light and sound, and experiences visual changes. In support of this opinion, Dr. H.S. further clarified that an association between headaches and tinnitus is documented in the International Journal of Audiology, Psychological and Audiological Correlates of Perceived Tinnitus Severity. In this regard, the Board finds that this April 2015 medical opinion is the most probative evidence of record, as it is dispositive of the claim. Dr. H.S. provided a clear, adequate rationale, which explains the correlation between the Veteran’s headaches and his service-connected tinnitus, with the application of medical literature to support his conclusion. Furthermore, his opinion was based on a review of the Veteran’s claims file. Therefore, the Board finds that the Veteran’s headaches are permanently aggravated by his service-connected tinnitus. In this regard, secondary service connection for headaches is granted. 4. An Acquired Psychiatric Disability The Veteran asserts that symptoms of his depressive disorder began during his military service and that they have exacerbated since his separation from service. In a March 2015 statement, the Veteran’s sister, E.W., indicated that prior to his enlistment into service, that he was always a social and outgoing individual who always functioned well, with a normal frame of mind, and was goal oriented, with aspirations of owning his own business. She noted that his mental state began to change when he was in service. She explained that she began to notice the change, with his letters becoming brief and generic. She also noticed a dramatic change in him when he came home from service, and that his entire outlook on life changed, with a negative outlook on life, becoming socially withdrawn from his friends and family, and acting like nothing mattered anymore. In another March 2015 statement, another sister, S.P., indicated that the Veteran was very social, active and outgoing prior to his enlistment into service. She explained that after he came home from service, she noticed a significant difference in his personality and mood; he was isolated and withdrawn, keeping to himself and refraining from socializing with friends and family; and becoming paranoid. She additionally noted that the Veteran has even mentioned suicide on a couple of occasions. STRs entail a September 1980 report of medical history form, in which the Veteran disclosed having a history of depression or excessive worry. Post-service treatment records reflect a diagnosis of a mental disability, including an adjustment disorder and non-specified depressive disorder. In support of his claim, the Veteran has submitted an April 2015 DBQ and medical opinion from a private psychologist, Dr. H.H-G. The DBQ reflects a mental diagnosis of unspecified depressive disorder. In the accompanying medical opinion, Dr. H.H-G opined that the Veteran’s unspecified disorder more likely than not began in military service; and that it is aggravated by his service-connected tinnitus. As the basis and rationale for her opinion, she noted, in pertinent part, that the Veteran reported that his tinnitus interfered with sleep and that he cannot sleep at night because the high ringing sound distracts him. She further indicated that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder; and that his tinnitus, in turn, continues to manifest as a depressive disorder. In support of her rationale and opinion, she explained that there is a body of literature detailing the connection between medical issues, like the issues the Veteran struggles with, and a psychiatric disorder, similar to depressive disorder complaints. She additionally explained that studies confirm the existence of neural circuits that are activated both in depression and tinnitus. Although the Board finds that the buddy statements from the Veteran’s sisters are competent, credible lay evidence, the Board finds that the April 2015 medical opinion on the Veteran’s mental disability is the most probative evidence of record, and is dispositive of this claim for an acquired psychiatric disability. This April 2015 medical opinion was provided by a mental health professional, Dr. H.H-G, who possesses the requisite expertise and knowledge of mental disabilities. Furthermore, Dr. H.H-G provided a clear, adequate rationale that explains the correlation between the Veteran’s depressive disorder and his service-connected tinnitus, with the application of medical literature to support her opinion. Thus, in this regard, secondary service connection for an acquired psychiatric disability, as permanently aggravated by service-connected tinnitus, is warranted. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel