Citation Nr: 21006579 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-16 989 DATE: February 4, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for atrial fibrillation (Afib) is remanded. FINDING OF FACT The Veteran’s tinnitus is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1975 to October 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) rating decision. The Veteran appeared before the undersigned at a Board hearing in June 2020. A transcript of that hearing is of record. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Organic diseases of the nervous system such as tinnitus will be presumed to have been incurred in or aggravated by service generally if such become manifest to a degree of 10 percent or more within one year of the Veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Service connection for tinnitus The Veteran contends that his tinnitus is due to in-service acoustic trauma. The Board concludes that while the Veteran’s tinnitus was not shown as chronic in service or within a presumptive period, and did not manifest to a compensable degree within a presumptive period, it was noted by the Veteran to exist since service; therefore, there is continuity of symptomatology since service. The Veteran has a current diagnosis of tinnitus. During his June 2020 Board hearing, the Veteran reported onset of constant bilateral tinnitus during active duty service. Regarding the medical evidence of record, the opinion from the June 2015 VA examiner does not have high probative value as the examiner did not comment on the Veteran’s lay statements as to onset in service, except to state that the Veteran’s service medical records did not reveal an auditory standard threshold shift bilaterally at separation, which is not indicative of an in-service noise injury. However, during the examination, the Veteran reported military noise exposure as he was assigned to infantry units, yet the examiner recorded that the Veteran could not recall the date or circumstances of onset. The record shows that the Veteran had reported tinnitus since active service. Further, in September 2015 and June 2020, the Veteran stated that his constant bilateral tinnitus began during active service and had continued since. The Veteran stated that he was exposed to aircraft noises, artillery, generators, small arms fire, and loud vehicles. The Board finds the lay evidence in this case on the question of the onset and course of the Veteran’s tinnitus to be competent and credible, and to lessen the probative weight of the VA opinion. The record shows that the Veteran consistently reported that his tinnitus began during active service and had continued since. Additionally, all of the Veteran’s statements with regard to noise exposure onset and his tinnitus symptoms are credible, because they are corroborated by his personnel records, consistent with the nature of his service, and there is no persuasive evidence of equal weight in the claims file that negates, undermines, or otherwise contradicts the substance of his lay statements. Accordingly, an award of service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. REASONS FOR REMAND 2. Service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is related to his service. As noted above, the Veteran reported acoustic trauma from aircraft noises, artillery, generators, small arms fire, and loud vehicles during his active duty service. The Veteran last underwent a VA audiological examination in June 2015. The examination results demonstrated that the Veteran did not have hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. However, upon review of the record, the Board notes that since that examination, the Veteran noted that his hearing loss was worse than previously tested and that his left ear was muffled, as if there was water in his ear. See June 2020 hearing testimony. The Board finds that a remand is necessary to determine the current nature and etiology of the Veteran’s claimed bilateral hearing loss. Therefore, upon remand VA must provide the Veteran an opportunity to undergo a VA audiological examination. 3. Service connection for OSA is remanded. 4. Service connection for Afib is remanded. The Veteran contends that his OSA, which was diagnosed in June 2012, and Afib, which was also diagnosed in June 2012, are related to his service-connected posttraumatic stress disorder (PTSD). Alternatively, the Veteran asserts that his OSA and Afib are due to chemical exposure while deployed on active duty or that his sleep disorder and heart disorder are medically unexplained chronic multisymptom illnesses. During his June 2020 Board hearing, the Veteran testified that soldiers told him that he snored loudly when he was deployed. He saw a medic and was informed that his loud snoring was due to sand and dust. He was treated for a sinus condition. He reported being stationed in an area where chemical or biological weapons were used. Also, he was near burn pits. The Veteran reported that medical research linked OSA and Afib to PTSD. The Board notes that the Veteran is service-connected for PTSD. In July 2020, a private physician noted that given the Veteran’s exceptionally healthy status beyond arrhythmia, he felt that there is a strong connection of his Afib to his PTSD and chemical weapons exposure during active duty. No rationale was provided. Therefore, the Board finds that a VA examination should be scheduled to determine the etiology of the Veteran’s OSA and cardiovascular condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hearing loss. The examiner must provide the following opinions: (a.) Whether any diagnosed hearing loss is at least as likely as not related to an in-service injury, event, or disease, including noise exposure. (b.) Whether any hearing loss at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s OSA. Based on a review of the record and any examination findings, the examiner should provide an opinion as to whether: (a.) It is at least as likely as not (50 percent or greater probability) that the Veteran’s OSA is etiologically related to his active service, to include chemical exposure. (b.) It is at least as likely as not (50 percent probability or greater) that any current OSA is proximately due to, or the result of, the Veteran’s service-connected PTSD. (c.) It is at least as likely as not (50 percent probability or greater) that any current OSA is aggravated beyond the natural progress of the disease by the Veteran’s service-connected PTSD. (d.) The examiner should also provide an opinion as to whether it is as likely as not (50 percent probability or greater) that the Veteran’s OSA is, or is a manifestation of, a medically unexplained chronic multi-symptom illness, i.e., a diagnosed illness with no conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features, such as sleep disturbances, fatigue, and signs and symptom of upper or lower respiratory systems. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. Specifically, the examiner must address the Veteran’s in-service reports of loud snoring. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s Afib. Based on a review of the record and any examination findings, the examiner should provide an opinion as to whether: (a.) It is at least as likely as not (50 percent or greater probability) that the Veteran’s Afib is etiologically related to his active service, to include chemical exposure. (b.) It is at least as likely as not (50 percent probability or greater) that any current Afib is proximately due to, or the result of, the Veteran’s service-connected PTSD. (c.) It is at least as likely as not (50 percent probability or greater) that any current Afib is aggravated beyond the natural progress of the disease by the Veteran’s service-connected PTSD. The examiner should also provide an opinion as to whether it is as likely as not (50 percent probability or greater) that the Veteran’s Afib is, or is a manifestation of, a medically unexplained chronic multi-symptom illness, i.e., a diagnosed illness with no conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features, such as sleep disturbances, fatigue, and signs and symptom of upper or lower respiratory systems. (Continued on the next page)   The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.