Citation Nr: A21020683 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 211120-199243 DATE: December 30, 2021 ORDER Service connection for diabetes mellitus is denied. Service connection for obstructive sleep apnea is denied. REMANDED Service connection for tinnitus is remanded. Service connection for high blood pressure (hypertension) is remanded. FINDINGS OF FACT 1. The probative evidence of record does not support a finding that the Veteran's diagnosed diabetes mellitus is causally related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of discharge from active duty. 2. The probative evidence of record does not support a finding that the Veteran's diagnosed obstructive sleep apnea is causally related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of discharge from active duty. CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for diabetes mellitus. 38 U.S.C. § 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria have not been met for service connection for obstructive sleep apnea. 38 U.S.C. § 1110, 1112, 1113, 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 June 1965 to June 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision of a Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran filed a notice of disagreement and requested direct review by the Board. 1. Service connection for diabetes mellitus is denied. Legal Criteria Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 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. Factual Background The Veteran reported in his claim for benefits that his diabetes mellitus began during service as a result of "military events." He did not clarify this statement or explain it any further. A December 2019 medical treatment note indicates that the Veteran was diagnosed with diabetes 20-30 years ago (that is, 1989-1999). A May 2020 medical treatment note also indicates that the Veteran has a diagnosis of diabetes mellitus. Analysis While the record indicates that the Veteran has a current diagnosis of diabetes mellitus, there is no indication in the record that this condition may be related to his military service. The Veteran's service treatment records do not include any reports, treatment, or diagnosis of diabetes mellitus. Additionally, the December 2019 medical treatment note indicates that diabetes was not diagnosed for many years after his separation from service in June 1971 (the evidence indicates that, at the earliest, this diagnosis would have been in the late 1980s, well more than a decade after the Veteran left service). There is absolutely no evidence supporting a causal linkage between diabetes and military service other than the Veteran's assertion, which cannot be considered qualified medical evidence (as explained below). A VA medical examination and linkage opinion have not been provided to the Veteran but finds that VA's duty to assist in this regard has not been triggered in this case. A medical examination or opinion is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service injury or disease, and (3) an indication that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2). In this regard, the Board notes that the Veteran's service treatment records do not include any reference to diabetes and the Veteran has not described any in-service injury or disease that might have caused diabetes. Likewise, he has not reported a continuity of relevant symptoms since service. VA is not required to provide a medical examination when there is no credible evidence of an injury or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). To be clear, the Board is not finding the Veteran's statements not credible. Instead, the Board finds that he does not have the specialized training or experience to provide causal linkage evidence. Identifying the likely cause of diabetes is a complex medical question because there are multiple possible causes and the processes by which these causes may occur are not observable to lay persons without specialized medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Additionally, a conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination or causal linkage opinion is not necessary to decide the claim. Based on the foregoing, the Board finds that the Veteran's diabetes mellitus is not shown to be causally related to any disease or injury during service and did not manifest to a compensable degree within one year of discharge from active duty. As such, service connection is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for diabetes mellitus. As such, that doctrine is not applicable here, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Service connection for obstructive sleep apnea is denied. Factual Background The Veteran reported in his claim for benefits that his sleep apnea began during service as a result of "obstructive sleep due to conditions." He did not clarify this statement further. The Veteran's service treatment records do not include any reports of snoring, interrupted sleep, or episodes of sleep apnea. A January 2020 medical treatment note indicates that the Veteran was diagnosed with obstructive sleep apnea 15 years prior to that time (that is, 2005). The Veteran was provided with a CPAP machine which he used for a year and then stopped because it was "noisy" his wife reports that he still snores. Analysis While the record indicates that the Veteran has a diagnosis of obstructive sleep apnea, there is no indication in the record that this condition may be related to his military service. The Veteran's service treatment records are negative for any reports, treatment, or diagnosis of obstructive sleep apnea. The January 2020 medical treatment note indicates that the Veteran was not diagnosed with obstructive sleep apnea until 2005. There is no evidence (lay or medical) relating the obstructive sleep apnea to service, other than the Veteran's assertion, which cannot be considered qualified medical evidence (as explained below). A VA medical examination and linkage opinion have not been provided to the Veteran but finds that VA's duty to assist in this regard has not been triggered in this case. A medical examination or opinion is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service injury or disease, and (3) an indication that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2). In this regard, the Board notes that the Veteran's service treatment records are negative for any reference to sleep apnea and the Veteran has not described any in-service injury or disease that might have caused sleep apnea. Likewise, he has not reported a continuity of relevant symptoms since service. VA is not required to provide a medical examination when there is no credible evidence of an injury or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). To be clear, the Board is not finding the Veteran's statements not credible. Instead, the Board finds that he does not have the specialized training or experience to provide causal linkage evidence. Identifying the likely cause of sleep apnea is a complex medical question because there are multiple possible causes and the processes by which these causes may occur are not observable to lay persons without specialized medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Additionally, a conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination or causal linkage opinion is not necessary to decide the claim. Based on the foregoing, the Board finds that the Veteran's obstructive sleep apnea is not shown to be causally related to any disease or injury during service and did not manifest to a compensable degree within one year of discharge from active duty. As such, service connection is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for obstructive sleep apnea. As such, that doctrine is not applicable here, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert supra. REASONS FOR REMAND Service connection for tinnitus is remanded The Veteran reported in his claim for benefits that he believes his tinnitus is due to in-service noise exposure to turbine engines. A November 2010 VA medical provider noted that the Veteran "reported constant ringing in both ears for the past few years." The Veteran was afforded a June 2021 VA examination during which the Veteran reported that his tinnitus began during service in 1968 and that it has progressively gotten worse since then. The conducting physician opined that it was less likely than not that the Veteran's tinnitus was causally related to service because his military occupational specialty was a low probability for hazardous noise exposure. In a June 2021 rating decision, VA found that the Veteran had been exposed to loud hazardous noise, and thus that an injury or disability occurred during service. Acoustic trauma due to loud noise has been accepted as satisfying the in-service disease or injury element of a claim for disability compensation. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). In light of the favorable finding regarding noise exposure, the Board cannot assign probative value to the June 2021 VA examiner's negative nexus opinion because it was based on an inaccurate factual premise. Additionally, the June 2021 VA examiner did not take into consideration the Veteran's competent and credible statements regarding his in-service noise exposure and tinnitus. See Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, the Veteran has not been provided an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). This is a pre-decisional duty to assist error requiring remand to obtain an adequate VA opinion. Service connection for hypertension is remanded. The Veteran reported in his claim for benefits that he believes he had an onset of hypertension during service in July 1970. His service treatment records show elevated blood pressure readings of 132/84 in April 1966, 122/84 in May 1969, and 130/78 in May 1971. The Veteran has a current diagnosis of hypertension but has not received a VA examination and causal linkage opinion in connection with is claim. See January 2015 medical treatment note. Because the in-service elevated blood pressure readings meet the criteria for providing an examination and opinion, and because these criteria were met prior to the rating decision that denied the claim, the Board finds a pre-decisional duty to assist error occurred and a remand is warranted to correct this deficiency. See McLendon, supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess his tinnitus. The examiner should review the claims file, specifically the Veteran's service treatment records and lay evidence. A full subjective history should be elicited from the Veteran. The examiner should answer the following: a. Is it at least as likely as not (50 percent probability or more) that any diagnosed tinnitus began in service, was caused by service, or is otherwise related to the Veteran's active service? The Veteran's lay statements MUST be considered and discussed when formulating an opinion. For the purposes of this opinion, the examiner MUST assume that the Veteran experienced in-service acoustic trauma in the form of significant noise exposure. The examiner must also assume that the Veteran's reports of onset and symptoms are competent and credible unless they are contradicted by the medical evidence in some way (in which case, the examiner must explain fully what the contradiction is). A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 2. Obtain a VA opinion addressing the cause of the Veteran's hypertension. The electronic claims file must be made available to and be reviewed by the opinion provider. The Board leaves it to the discretion of the clinician to determine whether the Veteran needs to be examined. The clinician is asked to address the following: a. Is it at least as likely as not that the Veteran's hypertension had its onset during service or is otherwise related to service? The Veteran's in-service elevated blood pressure readings MUST be considered and discussed when formulating an opinion. The examiner must also assume that the Veteran's reports of symptoms are competent and credible unless they are contradicted by the medical evidence in some way (in which case, the examiner must explain fully what the contradiction is). [CONTINUED ON NEXT PAGE] A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.