Citation Nr: 1806781 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 11-28 834A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a compensable initial evaluation for nightmare disorder. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and June 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. FINDINGS OF FACT 1. The Veteran's current obstructive sleep apnea was incurred during his active duty service. 2. The Veteran's current tinnitus did not have its onset during service or within one year of his discharge from the service and has not been shown to be the result of disease or injury incurred during service. 3. The Veteran's nightmare disorder is manifested by mild symptoms controlled by continuous medication. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for establishing service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for an initial evaluation of 10 percent for nightmare disorder have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Claims Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain chronic diseases, to include tinnitus, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A. Obstructive Sleep Apnea Based upon a longitudinal review of the Veteran's claims file, the Board concludes that service connection is warranted for obstructive sleep apnea. The Veteran served on active duty in the Navy from June 1963 to September 1988. He contends that his obstructive sleep apnea was first manifested by severe snoring during his military service. A June 2009 statement from the Veteran's spouse noted the Veteran's history of severe snoring ever since they were married in July 1973. A September 2013 statement from the Veteran's son indicated that the Veteran snored extremely loud and had serious sleep problems while he was growing up. A review of the Veteran's post service treatment records revealed a diagnosis of obstructive sleep apnea during an April 2007 sleep study examination. Post service treatment records also reference the Veteran's long history of snoring and trouble sleeping dating back to his military service. In a September 2013 opinion letter, the Veteran's private physician opined that the Veteran's current obstructive sleep apnea began during his military service. Resolving all doubt in favor of the Veteran, service connection for obstructive sleep apnea is warranted. In making this determination, the Board finds the statements provided by the Veteran and his family members to be competent and credible evidence. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). B. Tinnitus The Veteran is seeking service connection for tinnitus. He attributes this condition to his inservice noise exposure. In statements and testimony before the Board, the Veteran reported that his tinnitus began shortly after his military service ended, and that it has significantly worsened in more recent years. Post service treatment records reflect that the Veteran currently has tinnitus. Accordingly, the Board's decision shall focus on whether this condition is related to his military service. Following a review of the Veteran's claims file, the Board concludes that the evidence is against finding a nexus between the Veteran's current tinnitus and his military service. The Veteran's service treatment records are completely silent as to any complaints of or treatment for tinnitus. His September 1988 retirement physical examination noted that his ears were normal. On a medical history report, completed pursuant to his retirement examination, the Veteran specifically denied having any ringing in either ear. The earliest documented evidence of tinnitus was in February 2016, which is more than 27 years after the Veteran's separation from service. In May 2016, a VA examination for hearing loss and tinnitus was conducted. The examiner noted the Veteran's history of ringing in the ears, bilaterally, for several years, becoming more problematic over the past two years. An audiological evaluation revealed bilateral sensorineural hearing loss. Following a review of the Veteran's claims file and physical examination of the Veteran, the VA examiner opined that the Veteran's current tinnitus was less likely than not caused by his military service, including his inservice noise exposure. In support of this opinion, the VA examiner cited the Veteran's denial of having any ringing in his ears at the time of his retirement examination. The examiner also noted that the Veteran's inservice duties were considered a low probability for hazardous noise exposure. The report concluded with a diagnosis of tinnitus acquired after leaving the military. The preponderance of the evidence is not in support of a finding that tinnitus is related to the Veteran's military service, including his inservice noise exposure. Although he has a current disability, there is no competent link that provides a nexus between the inservice noise exposure and the Veteran's current tinnitus. Moreover, there is no evidence that the Veteran had tinnitus during his first post service year. As such, service connection must be denied. The only evidence in favor of the claim consists of the lay statements and testimony by the Veteran that he believes his tinnitus began after his discharge from military service. The Board notes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. While the Veteran may be competent to report symptoms of a disorder, he is not competent to provide a medical nexus opinion regarding the etiology of his current tinnitus as this is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran has not been shown to have medical training and expertise, he is not competent to render a probative opinion on a medical matter such as whether his tinnitus is related to noise exposure over 2 decades prior to the diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Ultimately, the most probative evidence in this case is the adverse opinion of the VA examiner as the opinion was made after examination and testing and with consideration of the relevant history, including the Veteran's statements. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). II. Increased Evaluation Claim The Veteran is seeking an increased initial evaluation for his service-connected nightmare disorder. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO has assigned the Veteran's nightmare disorder a noncompensable disability evaluation, effective from February 18, 2016. In his notice of disagreement, the Veteran requested a 10 percent rating for the disability. Under the governing regulatory rating criteria, nightmare disorder is rated under a "General Rating Formula for Mental Disorders". 38 C.F.R. § 4.130, Diagnostic Code 9400. Under this Formula, a noncompensable (0 percent) rating is assigned when a mental condition has been formally diagnosed but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. After a careful review of all the evidence of record, lay and medical, the Board finds that, for the entire rating period on appeal, the Veteran's nightmare disorder has been manifested by mild symptoms controlled by continuous medication. A review of his post service VA treatment records reflect that he has been prescribed Prazosin for nightmares and Trazodone for insomnia associated with his nightmare disorder. VA treatment records also indicate that this treatment has been largely successful. A January 2017 treatment report noted that the Veteran's nightmares and insomnia had improved. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that an initial evaluation of 10 percent for nightmare disorder is warranted. As noted above, on his July 2016 notice of disagreement, the Veteran indicated that he was seeking a 10 percent evaluation for this condition. Accordingly, this decision constitutes a complete grant of the benefit sought on appeal as to this issue, and no further discussion is necessary. AB v. Brown, 6 Vet. App. 35, 38 (1993) ORDER Service connection for obstructive sleep apnea is granted. Service connection for tinnitus is denied. An increased initial evaluation of 10 percent for nightmare disorder is granted, subject to the rules and regulations governing the payment of VA monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs