Citation Nr: 21076209 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-53 253 DATE: December 22, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. OSA did not have its onset in service and is not otherwise related to the Veteran's active military service. 2. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed tinnitus was incurred in his active military service. CONCLUSIONS OF LAW 1. OSA was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. 2. Resolving all doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claims of entitlement to service connection for OSA, bilateral hearing loss, and tinnitus. The Veteran filed a notice of disagreement (NOD) in December 2014 and a statement of the case (SOC) was issued in October 2016. He perfected a timely appeal in October 2016. In July 2021, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. Service connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or from or aggravation of a pre-existing injury suffered or disease contracted in line of duty. See 38 C.F.R. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 1. Entitlement to service connection for OSA. The Veteran asserts entitlement to service connection for OSA, which he contends was incurred during his military service. See the July 2021 Board hearing transcript. The Veteran's service treatment records (STRs) do not document complaints of sleep apnea or symptoms possibly indicative of sleep apnea. However, he submitted personal testimony and lay statements in support of the contention that he developed symptoms which he believes were indicative of sleep apnea during his active duty service. See, e.g., the July 2021 Board hearing transcript. He also submitted lay statements from G.M., P.T., and J.F., who described the onset of the Veteran's snoring during his military service and continuing thereafter. To this end, the Board observes that the Veteran, G.M., P.T., and J.F. are competent to report experiencing symptoms such as snoring during and after his military service. See Jandreau v. Shinseki, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). The Veteran's VA treatment records document a post-service diagnosis for OSA. See, e.g., the VA treatment records dated August 2014. The Veteran was afforded a VA medical opinion in November 2014 at which time the examiner reviewed the Veteran's VA claims file and confirmed that he has a diagnosis of OSA. The examiner stated that the Veteran was diagnosed with OSA in 2014. The examiner explained, "while he did have reports of snoring in-service, this was greater than 35 years ago. [S]noring can be a symptom of OSA, but there are many people who snore who do not have OSA." The examiner continued, "it would be unusual for OSA to take 30 plus years to be diagnosed. [T]hus, it is less likely than not that [the Veteran's] snoring in/after service was first manifestation of OSA." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this matter, the Board finds that the most probative evidence of record demonstrates that the Veteran's claimed OSA was not incurred in his active duty service. At the July 2021 Board hearing, the Veteran's attorney argued that the November 2014 VA medical opinion was inadequate because the examiner did not consider the Veteran's contention of in-service snoring, as well as the lay statements submitted by third parties to corroborate the Veteran's contentions. Crucially, the November 2014 VA examiner explicitly considered the Veteran's report of snoring in service and the examiner did not dispute that the Veteran snored in service and thereafter. Rather, the examiner explained that, while snoring can be a symptom of OSA, it is not dispositive evidence of a diagnosis. Moreover, the findings of the November 2014 VA examiner were thoroughly explained and fully supported by the evidence of record. The Board notes that the November 2014 medical opinion was based on a review of the record, including the statements and evidence submitted by the Veteran, and the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the cumulative findings of the November 2014 VA examiner. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed OSA and the Veteran's active duty service outweighs any medical evidence suggestive of a nexus. The Board has carefully considered the contentions of the Veteran that he has OSA, which was incurred during service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran's lay theories regarding the onset and etiology of his OSA, or his in-service symptoms, are contradicted by the conclusions of the November 2014 VA examiner who specifically considered the Veteran's lay statements in rendering the negative opinion. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the November 2014 VA opinion to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, supra. Crucially, the November 2014 VA examiner specifically considered the lay assertions and inferences contained in the record in rendering the negative nexus opinion. Considering the overall evidence, including the post-service medical evidence, the November 2014 VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran's contentions that he suffers from OSA, which is related to his military service. Thus, the benefit-of-the-doubt rule is not applicable to the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. 2. Entitlement to service connection for tinnitus. Here, the Veteran contends that he has tinnitus, which is due to in-service noise exposure. See, e.g., the July 2021 Board hearing transcript. For the reasons set forth below, the Board finds that service connection for tinnitus is warranted. With respect to a current diagnosis, the November 2014 VA examiner confirmed a diagnosis of tinnitus. With respect to an in-service disease or injury, as indicated above, the record demonstrates that the Veteran served on active duty from January 1977 to December 1979. He asserts that he was exposed to artillery noise. See the July 2021 Board hearing transcript. The Veteran's service records confirm that his military occupational specialty (MOS) was field artillery surveyor. As such, the Board finds the Veteran's assertions of in-service noise exposure, an in-service injury, to be consistent with the evidence of record. Moreover, as set forth below, the Board finds competent and credible evidence of an in-service disease, tinnitus, based on the Veteran's hearing testimony. With respect to the final element of nexus, the Veteran was afforded a VA examination in November 2014 at which time the examiner noted the Veteran's report of tinnitus. The examiner indicated that the diagnosed tinnitus is not at least as likely as not caused by or a result of an event in military service. The examiner noted the Veteran reported he experiences intermittent bilateral tinnitus that began twenty years ago. The examiner explained, "[d]ue to the date of onset (about 20 years ago), it is less likely than not (less than 50 percent probability) that the Veteran's tinnitus is due to military noise exposure." In a November 2014 VA addendum opinion, the examiner indicated that the Veteran's "tinnitus began many years after service. [T]hus, it is less likely than not that tinnitus is associated with military noise exposure." At the July 2021 Board hearing, however, the Veteran presented detailed testimony describing the onset of tinnitus during his military service after in-service noise exposure. See the Board hearing transcript, pgs. 5-7. He stated that this tinnitus continued to the present day. Id. To this end, the Board finds the Veteran's contentions to be both competent and credible. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's statements and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such lay evidence is sufficient to establish service connection. Id As previously discussed above, the Veteran's assertions as to his tinnitus symptoms in service and thereafter are competent and credible as to continuity of symptomatology. Despite the negative nexus opinions from the VA examiner, as set forth above, the law provides an alternate avenue for establishing a nexus for certain chronic diseases, including an organic disease of the nervous system such as tinnitus. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). The Veteran has competently and credibly reported that his tinnitus, which had its onset during active duty, had continued since that time. The law provides that when a chronic disease is shown 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. See 38 C.F.R. § 3.303(b). Absent evidence of an intercurrent cause, the Board finds that the competent and credible evidence establishes that the Veteran's tinnitus had its inception during active service and has existed since that time. The Board has weighed the probative evidence of record, including the November 2014 VA medical opinions as well as the Veteran's competent and credible assertions concerning continuing tinnitus symptomatology, and finds that the evidence is in equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. For the reasons set forth below, the issue of entitlement to service connection for bilateral hearing loss must be remanded for further evidentiary development. The Veteran was afforded a VA audiology examination in November 2014 at which time the examiner indicated that the results of puretone audiometric testing could not be reported because the "[r]esults were too inconsistent to record." As to the question of nexus, the examiner noted that the Veteran served as a field artillery surveyor and "reported that he was exposed to loud noises from artillery, ground guns, grenade launchers, and machine guns. The Veteran's service records indicate that he had normal hearing sensitivity in the right ear at entrance (December 29, 1976) to the service. No exit exam was located in the electronic claims folder." The examiner continued, "[a] review of the Veteran's records in CPRS indicated no hearing loss was reported to his PCP at his appointments" in April 2010; December 2011; December 2012; and December 2013. The examiner concluded, "[w]ithout an exit examination from the military or reliable audiometric results today, this examiner cannot provide an opinion without resorting to mere speculation." The Board notes that the November 2014 VA examination report is inadequate as the examiner was unable to render an opinion as to diagnosis and nexus. Moreover, the lack of evidence of treatment for the claimed bilateral hearing loss in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). VA regulations do not preclude service connection for a hearing loss, which first met VA's definition of disability after service. See Hensley v. Brown, 5 Vet. App. 155, 157-59 (1993). A March 2018 VA treatment record contained a notation that the Veteran has hearing loss and "as likely as not this was caused by military service." However, the treatment provider did not provide any rationale for the conclusion rendered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is "suitably qualified and sufficiently informed") (emphasis added). Accordingly, the Board finds that the evidence of record was inadequate to resolve the claim of entitlement to service connection for bilateral hearing loss. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). This matter must therefore be remanded to obtain a new VA examination to address outstanding questions of diagnosis and nexus with respect to the claimed disability. The Veteran is advised, however, that it is his obligation to cooperate with VA's efforts to obtain the evidence necessary to substantiate his claim, to include participating fully and faithfully in the examination process. As set forth above, the previous audiology examiner noted inconsistencies in the Veteran's responses which raised questions regarding the reliability of the testing. The Veteran is advised that his failure to cooperate in the scheduled examination may result in his claim being rated on the evidence of record which, as set forth above, currently lacks probative evidence of a nexus to service. 38 C.F.R. §§ 3.326, 3.655. The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA audiology examination to address his claim of service connection for bilateral hearing loss. Access to the electronic claims file must be made available to the examiner for review in connection with the examination. All requisite diagnostic testing should be conducted. (Continued on the next page) With respect to the diagnosed bilateral hearing loss sufficient for VA compensation purposes, the examiner should render an opinion, with supporting rationale, as to: whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability: (a) had its onset during service, (b) was manifested to a compensable degree within the first post-service year; or (c) is otherwise related to in-service injury or disease, to particularly include the conceded in-service noise exposure. In addressing the above, the examiner is advised that the absence of evidence of hearing loss in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.