Citation Nr: 21076782 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-50 381 DATE: December 27, 2021 ORDER The claim for entitlement to service connection for hepatitis C is denied. REMANDED The claim for entitlement to service connection for tinnitus is remanded. The claim for entitlement to service connection for a sleep disorder to include sleep apnea and REM-related sleep apnea is remanded. FINDING OF FACT The medical evidence does not show the Veteran was diagnosed with hepatitis C at any time during active service or post-active service, to include any time during this appeal; nor did cirrhosis manifest to a compensable degree within one year of active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1972 to October 1974, and from October 1979 to November 1988. In addition, service records show the Veteran served in the U.S. Army Reserves or National Guard from October 1974 to October 1979. These claims come to the Board of Veterans Appeals (Board) from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the undersigned Veterans Law Judge in July 2021. A transcript of the hearing is associated with the claims file. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including cirrhosis of the liver, may be service connected on a presumptive basis if manifested to a compensable degree within one year after discharge from active service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran argues he has hepatitis C that was diagnosed during active service. He testified in July 2021 that he was diagnosed in 1980 or 1983, and the infection has persisted from then to the present. Unfortunately, the medical evidence does not support his contentions. The medical evidence, to include service treatment records, VA and private treatment records, and records from the Social Security Administration (SSA) does not show that the Veteran has been diagnosed with hepatitis C either during any period of active service or presently. Rather, VA treatment records show the Veteran has been diagnosed with alcoholic hepatitis. Moreover, although VA treatment records show the Veteran is currently diagnosed with cirrhosis, these records show that cirrhosis has been attributed to the Veteran's long history of alcohol consumption. In addition, these records show cirrhosis was first diagnosed in 2015, which is many years following and clearly more than one year after, the Veteran's discharge from active service in 1988. See, generally, VA treatment records; see also CAPRI Records (rec'd 3/12/2016), p. 74 of 270; CAPRI Records (rec'd 3/12/2016), p. 125 of 184; SSA Records (rec'd 4/30/2016), p. 7 of 73. As the Veteran is diagnosed not with hepatitis C but with alcoholic hepatitis and alcoholic cirrhosis, and because service treatment records show no findings of hepatitis C during active service, he does not meet any of the elements of Shedden required to prevail in his claim. The Board has considered the Veteran's statements to the effect that he was diagnosed with hepatitis C during active service and that it has persisted from then to now. The Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the probative value of the Veteran's general assertions in this regard is outweighed by the probative evidence of record outlined above that documents no in-service complaints or diagnosis of hepatitis C, or post-service diagnosis of hepatitis C. Instead, the medical evidence documents the diagnosis of alcoholic hepatitis and cirrhosis many years after discharge from active service, in 2015, which has been medically related to alcohol consumption by his treating health care providers. There is no other medical evidence showing or tending to show that the Veteran has hepatitic C that had its onset during or is the result of active service. In addition, there is no other medical evidence showing or tending to show that the Veteran's diagnosed cirrhosis had its onset during active service or within the one-year presumptive period after the Veteran's discharge or, is the result of hepatitis C that had its onset during active service or is in any way the result of active service. The Board observes VA examination has not been accorded the Veteran concerning the claim of hepatitis C. However and for the following reasons, the Board concludes the evidentiary record contains sufficient evidence with which to decide the claim and the duty to assist has been fulfilled. These reasons are (1) clinical findings exclude hepatitis C as a diagnosis; (2) VA treatment records and SSA records show the Veteran is diagnosed with alcoholic hepatitis and alcoholic cirrhosis; (3) alcoholic hepatitis and alcoholic cirrhosis were first diagnosed in 2015, many years after the Veteran's discharge from active service in 1988 and beyond the one-year presumptive period from his discharge; (4) the Veteran has not presented any evidence of a diagnosis of hepatitic C or, in the alternative, of a causal link between his currently diagnosed alcoholic hepatitis or alcoholic cirrhosis and active service nor has he attested to the existence of such evidence. Therefore, the Board finds VA examination is not necessary to decide the claim. See 38 C.F.R. § 3.159. Accordingly service connection for hepatitis C is not warranted. The preponderance of the evidence is against the claim for service connection for hepatitis C. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for hepatitis C is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran also claims service connection for tinnitus and sleep apnea. In his hearing before the undersigned in July 2021, the Veteran argued he experienced tinnitus and trouble sleeping during active service and that both these symptoms have been present since then to the present. He has also argued his tinnitus is the result of an inservice personal attack in which he sustained head injury. Similarly, he argued his sleep apnea is the result of the same injury or, in the alternative, aggravated by TBI residuals to include the service-connected major depressive disorder (MDD). Unlike hepatitic C, tinnitus and difficulty sleeping may be observed by lay persons, who are capable of observing ringing in the ear and such symptoms as tiredness and inability to sleep. In fact tinnitus is of the diseases wherein observation is not always possible by a medical professional and therefore does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). In addition, the Veteran is service connected for TBI, migraine and migraine variances associated with TBI, and for MDD. Moreover, a 2016 VA medical opinion establishes that the service-connected MDD is the result of the personal attack in which he sustained head injury. Given the Veteran meets the first two elements under Shedden for these claims (see also Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) for secondary service connection), and has provided evidence supporting the finding of a causal nexus between the diagnosed disabilities and active service, VA appropriately afforded the Veteran VA examinations. However, the examinations provided do not provide adequate bases upon which to adjudicate these claims. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Concerning the 2016 VA audiological examination, the 2016 VA audiological examiner stated an opinion as to the etiology of the claimed tinnitus could not be provided without resort to speculation because of the Veteran's post-service noise exposure, but did not to consider whether the claimed tinnitus is the result of or aggravated by the service-connected TBI to include headaches. Similarly, the 2015 VA examiner who conducted the examination for sleep apnea did not consider whether the claimed sleep disorder is the result of or aggravated by the service-connected TBI, to include MDD. In addition, the examination was conducted prior to the diagnosis of sleep apnea and the VA examiner stated the clinical record was incomplete at the time of the examination. Private medical opinions provided in September 2021 assert that the claimed tinnitus is the result of the Veteran's exposure to noise in his military occupational specialties and the diagnosed REM-related sleep apnea has been aggravated beyond the normal degree of worsening by the service-connected MDD and TBI. Yet, these examinations and opinions are also lacking. The private audiologist did not discuss the Veteran's exposure to occupational noise following active service. The private examiner for sleep disorders did not discuss the Veteran's specific symptoms and clinical findings so much as employ general observations about individuals with psychological impairment and individuals with TBI to conclude it is feasible that these symptoms together have disrupted the Veteran's sleep pattern. As such, the Board is unable to grant service connection for tinnitus or sleep apnea based on the private opinions alone. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with the appropriate specialist to determine the nature and etiology of his tinnitus, to include as the result of his service-connected TBI residuals including migraine headaches. The claims file must be reviewed in conjunction with the examination. All audiological pathology must be identified. For any audiological pathology, the examiner is asked to opine: (a.) Is it more likely than not (50 percent or greater probability) that any currently diagnosed audiological impairment is the result of the same inservice head injury that caused the service-connected TBI and residuals or; (b.) in the alternative, is the currently diagnosed headache disorder the result of or aggravated by the service-connected TBI residuals, including service-connected migraine headaches and MDD or, (c.) the result of active duty or any other incident therein. For any aggravation found, the examiner must state to the best of their ability the baseline of symptomatology of the tinnitus and amount, quantified if possible, of aggravation of the headache disorder beyond the baseline symptomatology caused by the service-connected TBI and residuals, to include service-connected migraine headaches and/or service-connected MDD. The examiner must provide a full and complete rationale for all opinions expressed. 2. Schedule the Veteran for a VA examination with the appropriate specialist to determine the nature and etiology of his sleep disorder to include sleep apnea and REM-related sleep apnea, to include as the result of his service-connected TBI residuals, migraine headaches, and MDD. The claims file must be reviewed in conjunction with the examination. All sleep pathology must be identified. For any sleep pathology, the examiner is asked to opine: (a.) Is it more likely than not (50 percent or greater probability) that any currently diagnosed sleep disorder is the result of the same inservice head injury that caused the service-connected TBI and TBI residuals or; (b.) in the alternative, is the currently diagnosed sleep disorder the result of or aggravated by the service-connected TBI residuals, service-connected migraine headaches, and or service-connected MDD or, (c.) is the sleep disorder in any way the result of active duty or any other incident therein. For any aggravation found, the examiner must state to the best of their ability the baseline of symptomatology of the sleep disorder and amount, quantified if possible, of aggravation of the sleep disorder beyond the baseline symptomatology caused by the service-connected TBI and residuals, service-connected migraine headaches, and/or service-connected MDD. 3. If any claims are denied, provide the Veteran and his representative, if any, with a supplemental statement of the case and an appropriate time within which to respond. Thereafter, return the claim to the Board, if in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.