Citation Nr: 20005367 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 18-46 728 DATE: January 22, 2020 ORDER Service connection for bilateral sensorineural hearing loss is granted. Service connection for tinnitus is granted. Service connection for sleep apnea is denied. Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for anxiety and depression is denied. FINDINGS OF FACT 1. The Veteran was exposed to loud noise and sustained acoustic trauma during service. 2. The Veteran has a current disability of bilateral sensorineural hearing loss for VA purposes. 3. Symptoms of bilateral hearing loss were continuous since service separation. 4. The Veteran has a current disability of tinnitus. 5. Symptoms of tinnitus have been continuous since service separation. 6. Shortly prior to and during the period on appeal, the Veteran did not have and has not had a current sleep apnea disability. 7. Shortly prior to and during the period on appeal, the Veteran did not have and has not had a current PTSD disability. 8. The Veteran is currently diagnosed with anxiety and depression; the current anxiety and depression disorder did not have its onset during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326, 4.125. 5. The criteria for service connection for anxiety and depression have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty in the U.S. Army from September 1972 to September 1975, and subsequently transferred to the Army National Guard from October 1975 to September 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duties to notify and assist have been met in this case. Neither the Veteran nor the representative raised any issues with the duty to notify or duty to assist. For these reasons, no further discussion of VCAA duties to notify or assist will take place regarding the issue on appeal. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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. See 38 C.F.R. § 3.385. The Veteran is currently diagnosed with bilateral sensorineural hearing loss and is shown to have tinnitus, which are organic diseases of the nervous system and considered “chronic” diseases under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. Id. Claims for service connection for PTSD require medical diagnosis conforming to the requirements of 38 C.F.R. § 4.125(a), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f); 38 C.F.R. § 4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Lay testimony is sufficient to corroborate a claimed stressor when, absent clear and convincing evidence to the contrary, the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat. 38 U.S.C. § 1154(b). 1. Service Connection for Bilateral Sensorineural Hearing Loss The Veteran contends that he experienced symptoms of hearing loss in service and requests compensation for the current bilateral sensorineural hearing loss. See September 2018 Form 9. The Veteran reports loud noise exposure in service and has reported continuous hearing loss symptoms since service. See September 2018 private medical examination. The Veteran has a current disability of bilateral sensorineural hearing loss. A December 2016 VA audiogram examination reveals a current bilateral sensorineural hearing loss that meets VA recognized disability levels at 38 C.F.R. § 3.385. The December 2016 VA audiogram examination shows auditory thresholds of 40 decibels (dB) or greater in both ears, as well as auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz at 26 dB or greater, to meet the criteria at 38 C.F.R. § 3.385. The Board finds that the Veteran was exposed to loud noise (acoustic trauma) while in service. The DD Form 214 reflects the military occupational specialty was a Unit Supply Specialist. During a September 2018 private examination, the Veteran reported that during service in the Army he was exposed to loud noises while working on a missile base, and, in the National Guard, while working on heavy equipment. Excessive noise exposure is consistent with the circumstances, conditions, and hazards of service working on a missile base, and in and around heavy equipment. See August 2009 VA treatment record (VA examiner reported hearing loss that is greater than normal age-related hearing loss); August 2015 VA treatment record (Veteran reported a significant history of noise exposure). The evidence is at least in relative equipoise on the question of whether symptoms of bilateral hearing loss were continuous since service separation. The Veteran reports loud noise exposure in service and has reported continuous hearing loss symptoms since service. In a September 2018 private examination, the Veteran reported continuous hearing loss symptoms since leaving service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that bilateral sensorineural hearing loss, as defined by the VA regulatory criteria at 38 C.F.R. § 3.385, is presumptively connected to service (under 38 C.F.R. § 3.303(b)) based on continuous post service symptoms. As the full benefit of service connection is being granted on the basis of presumptive service connection, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (the Board’s jurisdiction is only over “questions” of fact and law in a “matter” on appeal). 2. Service Connection for Tinnitus The Veteran contends that for over twenty years he has experienced ringing in both ears. See September 2018 private medical examination. The Veteran attributes the current tinnitus to the in-service noise exposure. See September 2018 private medical examination. The Board finds that the Veteran currently has tinnitus. The December 2016 VA audiometric examination report reflects a diagnosis for tinnitus. In addition, the Veteran has credibly reported that he has tinnitus in both ears. See September 2016 VA treatment record; December 2016 VA treatment record; September 2018 private medical examination (indicating that the Veteran reported having tinnitus in both ears since leaving service). See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). The evidence is in equipoise as to whether the Veteran experienced continuous symptoms of tinnitus in both ears after service separation. In the September 2018 private medical examination, the Veteran competently and credibly reported to the private medical examiner symptoms of tinnitus in service and continued symptoms of tinnitus after service separation. While the medical evidence of record is limited, the Veteran has reported continuous symptoms of tinnitus since service separation. See September 2016 VA treatment record; December 2016 VA treatment record; September 2018 private medical examination. Because the Veteran sustained nerve damage that caused the service-connected sensorineural hearing loss, by necessary logical inference under the facts of this case that include no other loud noise exposures or risks for tinnitus, the same auditory nerve damage to the inner ear caused the bilateral tinnitus. Such tinnitus is a permanent disability that was incapable of actual improvement of the nerve damage because tinnitus either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of tinnitus that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258. Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for presumptive service connection for tinnitus, namely, continuous symptoms since service separation, under 38 C.F.R. § 3.303(b), have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As presumptive service connection is being granted based continuous symptoms since service separation under 38 C.F.R. § 3.303(b), there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. While in December 2016 a VA examiner rendered a negative medical nexus opinion in regard to the claim for service connection for tinnitus, this opinion pertains only the theory of direct service connection (38 C.F.R. § 3.303(d)), so is not probative in determining presumptive service connection based on the continuity of symptomatology (38 C.F.R. § 3.303(b)) of a chronic organic disease of the nervous system (tinnitus) since service for presumptive service connection. 3. Service Connection for Sleep Apnea The Veteran contends that he has a current sleep apnea disorder, which he contends began in service. See August 2016 Claim; April 2017 Notice of Disagreement; September 2018 Form 9. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a relevant in-service injury, disease, or event pertaining to sleep apnea. Service treatment records do not reflect any in-service injury, complaints, symptoms, diagnosis, or treatment for a sleep apnea disorder. Report of Medical Examination completed on August 1975 reports a normal clinical evaluation for sleep apnea. A September 1975 service separation examination shows a normal clinical evaluation for sleep apnea, and there is no evidence of trouble sleeping or other relevant symptoms during service. The weight of the evidence also shows the Veteran does not have a current sleep apnea disability. The record does not reflect a diagnosis for a sleep apnea disorder at any time during or immediately prior to the claim on appeal. VA treatment records do not document findings for disorders claimed as sleep apnea. The May 2014 and October 2016 VA examiners noted that the Veteran is negative for sleep apnea symptoms. Other private treatment records do not show any additional or continuous complaints or findings for disorders claimed as sleep apnea, and do not reflect a diagnosis for sleep apnea. Accordingly, the Board finds that the Veteran does not have a current diagnosis of sleep apnea. As the preponderance of the evidence is against service connection, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service Connection for PTSD The Veteran generally contends that he is entitled to service connection for PTSD. See September 2018 Form 9. The Veteran claims that during service he was emotionally traumatized while deployed in a refugee camp. The Veteran alleges that he was treated in a state hospital for two days for suicidal ideations. See August 2016 VA treatment records. The Board finds that the Veteran is not currently diagnosed with PTSD. Even though the Veteran claims that he exhibited symptoms of PTSD after discharge from service, he is not competent to diagnose himself with PTSD. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”). The Veteran has been preliminarily screened for PTSD by VA on multiple occasions and has received multiple negative results. See November 2006 VA Treatment Record; June 2012 VA Treatment Record; April 2018 VA Treatment Record. The preponderance of the evidence is against finding that the claimed in-service stressor, visiting the refugee camp while in service, occurred. The Board finds that the Veteran is not credible in this assertion. The first record of the claimed stressor occurred in an August 2016 VA treatment record, 38 years after leaving service. The Veteran filed the claim for PTSD in August 2016, despite the assessment by VA prior to August 2016. See November 2006 VA Treatment Record (claimed stressor was not reported during a health screen); June 2012 VA Treatment Record (Veteran did not report the stressor). The DD Form 214 does not show that the Veteran served in an imminent danger area. The evidence, including Service Personnel Records and Service Treatment Records, does not show an in-service stressor event. For this reason, the Board finds that a preponderance of the lay and medical evidence of record weighs against the service connection claim for PTSD. 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. 5. Service Connection for Anxiety and Depression The Veteran contends that he has anxiety and depression that are caused by service. See April 2017 Notice of Disagreement; September 2018 Form 9. At the outset, the Board finds that the Veteran is currently diagnosed with anxiety and depression disorders. See August 2016 VA examination. After a review of all the lay and medical evidence, the Board concludes that, while the Veteran has current diagnoses of anxiety and depression, the weight of the evidence is against finding that any current acquired psychiatric disorder began during service or is otherwise related to service. Service treatment records do not reflect any complaints, symptoms, diagnoses, or treatment for any psychiatric disorders, and a September 1975 service separation examination shows the Veteran was found to be psychiatrically normal. In the service treatment records, the Veteran denied symptoms of depression or excessive worry and nervous trouble of any sort. During the August 2016 VA examination, the Veteran reported that he has been battling with depression since service. The treatment records for depression and anxiety start in November 2006, when treatment for anxiety and depression symptoms began at the Tuskegee VA. The Veteran was formally diagnosed with major depressive disorder and alcohol dependence until August 2016. In April 2018 the Veteran was screened for anxiety and depression, and the examiner noted that the results were negative for depression and anxiety. Following the April 2018 VA examination, the Veteran did not report a positive diagnosis for depression and anxiety. The records from the Tuskegee VA only cover a two-year period from 2016 to 2018, which tends to prove that the Veteran was treated for anxiety and depression that improved to a point where treatment was no longer necessary. The evidence shows no treatment for 28 after service for anxiety and depression. For these reasons, the Board finds that the criteria for service connection for anxiety and depression disorder have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Wasung, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.