Citation Nr: 21062381 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-47 369 DATE: October 7, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for pterygium of the left eye is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's tinnitus had its initial onset during active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1985 to June 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in June 2021. A transcript of the hearing is associated with the claims file. Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for tinnitus The Veteran has reported experiencing tinnitus, which is sufficient to establish the presence of the condition. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). The Veteran's DD Form 214 reflects that his military occupational specialty was a storekeeper, which is considered to have a low probability of hazardous noise exposure. Nevertheless, he testified that in the beginning of his career he did not have a rate, so he performed tasks with the boatswain's mates including chipping paint on the sides of the ship with loud chipping hammers and pneumatic needle guns. He stated that he was around loud noise all the time on the ship. He asserted that he told a medic about his tinnitus symptoms while aboard the ship, but was unsure if it was placed in his medical records. See NOD, May 2018. During a VA examination in February 2018, the Veteran reported that his tinnitus began while stationed on his first ship in 1985. The examiner opined that it is less likely than not that tinnitus was due to military noise exposure because the Veteran had a rate that was a low probability for hazardous noise exposure and there were no permanent changes in hearing sensitivity during service to indicate the presence of acoustic trauma. She found that it is at least as likely as not that the Veteran's tinnitus is related to his high frequency hearing loss in the right ear. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). The Veteran has provided competent lay evidence that his tinnitus began during military service and has continued to the present day. The Board does not see evidence in the record that contradicts or casts doubt on the credibility of his statements. Therefore, the Board will resolve reasonable doubt in the Veteran's favor and grant service connection based on continuity of tinnitus symptoms to the present. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 2. Entitlement to service connection for pterygium of the left eye is remanded This matter must be remanded for a VA examination. See 38 U.S.C. § 5103A(d). The record shows that the Veteran has been diagnosed with pterygium of the left eye by private doctors in June 2017. See Medical Treatment Record Non-Government Facility, August 2021. He asserts that (1) his pterygium began during military service or, alternatively, that (2) his pterygium is causally related to excessive shipboard sunlight exposure. See Hearing Transcript, June 2021. Service treatment records do not show any reports, symptoms, treatment, or diagnoses of a pterygium or any other eye condition. The Veteran's eyes were found to be normal at military medical examinations in September 1984, February 1989, and June 1992. He denied having any history of eye trouble in his reports of medical history given at each of these examinations. However, a lay person is competent to report being exposed to sunlight without eye protection, as such is within ordinary capacity. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As he has asserted that his pterygium may be a delayed-onset reaction to sunlight exposure during service, the Board finds that a VA examination must be obtained to consider this theory of entitlement. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). In remanding this matter, the Board makes no credibility findings as to the Veteran's statements or other lay evidence of record. Such findings will be made when (or if) this matter returns to the Board. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 3. Entitlement to service connection for obstructive sleep apnea is remanded. The Board finds that this matter must be remanded for a VA examination to determine the nature and etiology of the Veteran's obstructive sleep apnea. See 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 83-86. The Veteran asserts that his obstructive sleep apnea, diagnosed by a sleep study in 2016, began during military service. He submitted lay statements from his former spouse and another sailor who reported that the Veteran snored loudly and sometimes choked and gasped for air during his military service. With that evidence, a medical opinion is deemed necessary to determine whether the Veteran's obstructive sleep apnea had its onset during or is related to military service. Again, in remanding this matter, the Board makes no credibility findings as to the lay evidence of record. Such findings will be made when (or if) this matter returns to the Board. The matters are REMANDED for the following action: 1. Schedule a VA examination with a suitable clinician regarding the nature and etiology of the Veteran's left eye pterygium. The examiner is asked to review the claims file and opine on the following: Is it at least as likely as not that the Veteran's pterygium of the left eye began during or is causally related to military service, to include exposure to sunlight while stationed on ship decks? A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical evidence, to specifically include: Service medical records, including military examinations finding normal eyes in 1984, 1989, and 1992, with accompanying reports of medical history in which the Veteran denied eye trouble The Veteran's lay contentions that his left eye pterygium is related to exposure to sunlight without sunglasses on ships decks. See Hearing Transcript, June 2021; NOD, May 2018. Private medical records showing diagnosis and treatment for pterygium in June 2017. See Medical Treatment Non-Government Facility, August 2021 (p.18: Dr. H.H.) The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. 2. Schedule the Veteran for a VA examination with a suitable clinician regarding the nature and etiology of his obstructive sleep apnea. The examiner is asked to review the claims file and opine on the following: Is it at least as likely as not that the Veteran's obstructive sleep apnea began during or is causally related to military service? A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical evidence, to specifically include: Service medical records, including reports of medical history in which the Veteran denied frequent trouble sleeping in 1984, 1989, and 1992, and a separation medical examination showing that his weight was 145 pounds at his discharge Sleep study report from June 2016, including findings that the Veteran's weight was 175 pounds with a body mass index (BMI) of 31 Statements from M.K. submitted in October 2017 and P.L. submitted in August 2021, describing their perceptions of the Veteran's sleep symptoms The Veteran's lay contentions that his snoring and other sleep symptoms during service were a manifestation of undiagnosed sleep apnea If the basis of a negative opinion is the absence of reports of sleep apnea or its symptoms in service, the examiner must indicate: (1) whether sleep apnea and related symptoms would have been noted in the medical records at the time and (2) whether the Veteran would have sought treatment for the disorders during military service. The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.