Citation Nr: 21077119 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-64 479 DATE: December 28, 2021 ORDER Service connection for sleep apnea is denied. Service connection for tinnitus is granted. Service connection for other specified trauma and stressor related disorder is granted. Service connection for major depressive disorder is denied. FINDINGS OF FACT 1. No relevant respiratory injury or disease or sleep apnea symptoms were manifested during service. 2. Sleep apnea was manifested many years after service and is not causally or etiologically related to service. 3. Chronic symptoms of tinnitus were manifested during service, and tinnitus symptoms were continuously manifested since service. 4. The Veteran was exposed to hostile military activity while serving aboard the U.S.S. Albert David during the Vietnam War. 5. The current other specified trauma and stressor-related disorder diagnosis is related to the in-service stressor event of exposure to weapons fire. 6. Symptoms of major depressive disorder were manifested many years after service and are unrelated to service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 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, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for other specified trauma and stressor-related disorder are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for service connection for major depressive disorder are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from April 1968 to April 1970. This matter is on appeal from a September 2017 rating decision. In July 2021, the Veteran testified at a virtual Board hearing before the undersigned. The Board finds that the duties to notify and assist have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. 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; 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). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of tinnitus, as an organic disease of the nervous system, is listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are applicable to the diagnosis; however, obstructive sleep apnea, other specified trauma and stressor-related disorder, and major depressive disorder are not listed as chronic diseases under 38 C.F.R. § 3.303(b), so the presumptive service connection provisions are not applicable to the diagnoses. 1. Service connection for sleep apnea is denied. The Veteran contends that symptoms of sleep apnea, which he identifies as snoring, were manifested during service and continued after service. He seeks service connection on this basis. After review of all the lay and medical evidence of record, the Board finds that the weight of the lay and medical evidence is against finding that a respiratory injury or disease or sleep apnea symptoms were manifested during service. The service treatment records, which are complete, are absent of complaints of, diagnoses of, or treatment for respiratory injury or disease, sleep apnea, or sleep apnea symptoms. At the March 1970 service separation examination, the nose, lungs, and chest were clinically evaluated as normal. Because the service treatment records are complete, the Veteran received in-service treatment for nausea and vomiting associated with seasickness during service with no report or complaint of sleep apnea symptoms, and the nose, chest, and lungs were clinically evaluated at the March 1970 service examination and determined to be normal, the Board finds that sleep apnea is a condition that would have ordinarily been reported or recorded during service, if it had been present; therefore, the lay and medical evidence contemporaneous to service is of significant probative value and weighs against a finding of respiratory injury or disease or sleep apnea symptoms during service. The weight of the evidence is against finding that sleep apnea was otherwise causally or etiologically related to service. The earliest evidence of a sleep apnea symptoms and sleep apnea diagnosis confirmed by a sleep study was shown in January 2015, approximately 45 years after service separation. Considered together with the lay and medical evidence contemporaneous to service showing no sleep apnea symptoms, the approximate 45-year period between service separation in 1970 and the onset of sleep apnea symptoms approximately in 2015 is an additional factor that weighs against service incurrence. The Board has considered the Veteran's competent lay account of sleep apnea symptoms during and since service; however, because this more recent account is inconsistent with, and outweighed by, other lay and medical evidence more contemporaneous to service showing no in-service respiratory injury, disease, or symptoms, and no sleep apnea symptoms, diagnosis, or treatment during service, and the post-service lay and medical evidence showing an onset of sleep apnea approximately 45 years after service, it is not credible, so is of no probative value. Additionally, there is no competent medical opinion evidence linking the current sleep apnea to service. In this case, a VA medical opinion was not obtained addressing whether any incident, event, or symptoms during service caused the current sleep apnea because there were in fact no in-service injury, disease, or symptoms during service to which a current disability could be related by such opinion. Any such opinion elicited in this case, where the facts (by weight of the evidence) establish no in-service injury, disease, or event including relevant symptoms, necessarily would be based on the inaccurate factual premise of a respiratory injury or disease or sleep apnea symptoms during service; therefore, such an opinion based on an inaccurate factual premise would be of no probative value. Although the Veteran has asserted that sleep apnea first shown decades after service is causally related to service, he is a lay person and does not have the requisite medical training or credentials to be able to render an opinion regarding the cause of his sleep apnea under the specific facts of this case, which include no in-service symptoms and negative findings upon examination and documented post-service onset of symptoms and diagnosis of sleep apnea many years after service. In addition, there are multiple potential risk factors or causative factors for sleep apnea, many of which the Veteran has that are unrelated to service, and which are shown by the facts of this case to have begun after service. See https://medlineplus.gov/sleepapnea.html (noting that a person has an increased risk for sleep apnea if overweight, male, has a family history for sleep apnea, or has small airways). The etiology of sleep apnea is a complex medical etiological question dealing with the origin and progression of the respiratory system. Sleep apnea is a disorder diagnosed primarily on symptoms, clinical findings, and physiological testing; and would require knowledge of the respiratory system. While the Veteran is competent to report respiratory symptoms that he experiences at any time, under the facts of this case that do not in fact include reported sleep apnea symptoms during service, he is not competent to opine on whether there is a link between sleep apnea, symptoms of which were manifested many years after service, and active service because such opinions require specific medical knowledge and training. For these reasons, the Veteran's unsupported assertion of nexus to service is of no probative value. Thus, the weight of the evidence is against a finding that sleep apnea was caused by active service. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for sleep apnea; consequently, the appeal must be denied. 2. Service connection for tinnitus is granted. The Veteran contends that the current tinnitus, which is a condition capable of lay diagnosis, is due to in-service acoustic trauma of cannon fire. At the Board hearing, the Veteran testified that tinnitus symptoms began during service and have continued since service. After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the Veteran sustained acoustic trauma during service and chronic tinnitus symptoms were manifested during service and were continuously manifested since service. Although there was no specific report, complaint, or finding of tinnitus or ringing in the ears documented during service, and the ears were clinically normal at service separation, the Veteran has competently and credibly reported that tinnitus symptoms began during service after being exposed to the loud noise of cannon fire and tinnitus symptoms have continued since service. Because the Veteran's competent lay account of chronic tinnitus symptoms during service and continued tinnitus symptoms since service separation is consistent with and not contradicted by post-service lay and medical evidence, the lay account of chronic tinnitus symptoms during service and continuous tinnitus symptoms since service is deemed credible. Additionally, in December 2015, a VA medical provider considered the account of in-service noise exposure and chronic tinnitus symptoms and continuous post-service tinnitus symptoms since service and opined that tinnitus was related to in-service noise exposure. In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds that there were chronic symptoms of tinnitus during service and continuous tinnitus symptoms since service; therefore, presumptive service connection for the "chronic" disease of tinnitus under the criteria at 38 C.F.R. § 3.303(b) is warranted, so other potential theories for entitlement to service connection are rendered moot. 3. Service connection for other specified trauma and stressor-related disorder is granted. 4. Service connection for a major depressive disorder is denied. The Veteran contends that he currently has posttraumatic stress disorder (PTSD) due to a claimed in-service stressor event of witnessing his naval ship shelling the shoreline of Vietnam in support of U.S. military operations during the Vietnam war. He does not contend, and the evidence does not show, that he had combat service or witnessed any death or serious injury during service. After review of the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's claimed stressor events related to the fear of hostile military activity during service are consistent with the places, types, and circumstances of the service. The DD Form 214 shows a military occupational specialty (MOS) of laundry operations during the service, which is not a MOS typically associated with hostile military activity; however, the Veteran has reported exposure to weapons fire while stationed aboard the U.S.S. Albert David (DE-1050), and the evidence of record does not contradict the Veteran's account of the in-service stressor event. Because the identified stressor of exposure to weapons fire is related to a fear of hostile military activity and is consistent with the circumstances of the Veteran's service while serving aboard the U.S.S. Albert David, the Board finds that the Veteran's lay statements are sufficient to establish the occurrence of the identified in-service stressor event of exposure to weapons fire during active service. See 38 C.F.R. § 3.304(f). The Board next finds that the evidence is at least in equipoise on the question of whether the current psychiatric diagnosis of other specified trauma and stressor related disorder is related to the in-service stressor event of exposure to weapons fire while serving on the U.S.S. Albert David. After reviewing the record and performing a thorough mental evaluation of the Veteran, the July 2017 VA PTSD examiner opined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5. The July 2017 VA PTSD examiner alternatively diagnosed other specified trauma and stressor-related disorder and linked the diagnosis to the service stressor event. The July 2017 VA PTSD examiner noted past diagnoses of PTSD in the record and explained that that it was as likely as not that some residual trauma from the experience in Vietnam contributed to the current symptom presentation. The July 2017 VA PTSD examiner wrote that he believed that the Veteran would not meet the diagnosis of PTSD under DSM-5 criteria because of the severity of the trauma and historical presentation of symptoms and noted that most symptoms were better explained by a diagnosis of major depressive disorder. The July 2017 VA PTSD examiner added that the claimed in-service stressor event did have some influence on the present symptom report, so he also diagnosed other specified trauma and stressor related disorder. Because the July 2017 VA PTSD examiner has medical expertise and training in the diagnosis of psychiatric disorders, had accurate and sufficient facts and data on which to base the medical opinion, and provided sufficient rationale for the medical opinion, the July 2017 VA medical opinion is of significant probative value. In consideration of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for other specified trauma and stressor-related disorder have been met. Regarding the psychiatric diagnosis of major depressive disorder, the weight of the evidence is against finding that the current depressive disorder is related to service. The service treatment records show no complaint, diagnosis, or treatment for depression during service, and post-service treatment records show no depression symptoms until 2015 (i.e., approximately 45 years after service separation) with the exception of a positive depression screen in 2007. Additionally, after review of the record and mental evaluation of the Veteran, the July 2017 VA PTSD examiner opined that depressive disorder was less likely than not incurred in or caused by service. When providing rationale for the medical opinion, the July 2017 VA PTSD examiner explained that the preponderance of the information, including the clinical record, evidence from the e-file, and history of trauma and function made it more likely than not that the depression began after retirement. The July 2017 VA PTSD examiner noted in the examination report that depression the Veteran developed a significant depression after he retired that was linked to (non-service-related) unemployment, medical issues, his wife's medical concerns, financial stressors, and other current (post-service) issues. The July 2017 VA PTSD examiner has medical expertise and training in the diagnosis of psychiatric disorders, had accurate and sufficient facts and data on which to base the medical opinion, and provided sufficient rationale for the medical opinion; therefore, the July 2017 VA medical opinion is of significant probative value. A January 2015 VA psychiatry emergency department note includes reference to trauma-related depression, which suggests a link between depression and the in-service stressor event; however, the January 2015 treating VA psychiatrist also noted an impression of rule out major depressive disorder, which indicates that the diagnosis and its etiology required additional evaluation. Consequently, the reference to trauma-related depression is of minimal probative value and is outweighed by the July 2017 VA medical opinion. (Continued on the next page) The Veteran, as a lay person, is competent to report any psychiatric symptoms he has experienced at any given time; however, under the facts of this case, he is not competent to diagnose PTSD or major depressive disorder or render a competent medical opinion on its cause because answers to such questions require medical expertise in the area of psychiatric disorders and falls outside the realm of common knowledge of a lay person. See 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"). Because the weight of the evidence shows that major depressive disorder is unrelated to service, this aspect of the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.