Citation Nr: 21008049 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-38 972 DATE: February 11, 2021 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for asthma, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for obstructive sleep apnea, claimed as due to exposure to herbicide agents and/or as secondary to service-connected posttraumatic stress disorder with depressive disorder and alcohol use disorder (PTSD), is remanded. FINDING OF FACT Resolving all doubt in his favor, the Veteran’s currently diagnosed tinnitus had its onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to June 1971. This matter comes to the Board of Veterans’ Appeals (Board) from rating decisions issued in June 2014 and March 2015 issued by a Department of Veterans Affairs (VA) Regional Office. In April 2016 the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The undersigned held the record open for 60 days for the submission of additional evidence, which was received in May 2016. While the issue of entitlement to service connection for asthma was phrased as an application to reopen a previously denied claim at the time of the Board hearing, a review of the record reflects that the June 2014 rating decision, which initially denied such claim, is not final. In this regard, in the March 2015 rating decision, the Agency of Original Jurisdiction (AOJ) found that new VA treatment records indicating ongoing treatment for asthma were added to the claims file within one year of the issuance of such rating decision and readjudicated the claim. 38 C.F.R. § 3.156(b). Thus, the claim has been recharacterized as shown on the title page of this decision. The Board notes that, at the time of the Veteran’s April 2016 Board hearing, he was represented by Disabled American Veterans. However, in November 2016, he properly appointed Robert V. Chisolm, an attorney, as his representative. The Board recognizes the change in representation. Finally, the Board observes that additional evidence has been associated with the record since the issuance of the October 2015 and November 2015 statements of the case and the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence. However, as the Board herein grants the Veteran’s claim for service connection for tinnitus, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. Furthermore, as the Board remands the remaining claims, the AOJ will have an opportunity to consider such newly received evidence in the readjudication of the claims. 1. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that his current tinnitus had its onset in service as a result of noise exposure. At his April 2016 Board hearing, he testified that he was exposed to explosions, firing ranges, mortar attacks, artillery flying overhead, and he worked and flew on helicopters while working as a door gunner in Vietnam. Thus, the Veteran claims that service connection for tinnitus is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus as such disorder can be identified through lay observations alone and he has offered competent and credible descriptions of experiencing tinnitus throughout the appeal. Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, such diagnosis was confirmed at a May 2014 VA examination. Furthermore, while the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis referable to tinnitus, his DD 214 reflects that his military occupational specialty was a helicopter repairman and he served in Vietnam from December 1968 to September 1969. Thus, the Board finds the Veteran’s statements regarding in-service noise exposure to be competent and credible as such are consistent with the circumstances of his service. Consequently, the remaining inquiry is whether the Veteran’s tinnitus is related to his military service, to include his acknowledged in-service noise exposure. In this regard, at a May 2014 VA examination and reiterated in an August 2014 opinion, a VA examiner found that the Veteran was exposed to hazardous noises throughout his service, but opined that his tinnitus is less likely as not caused by his acknowledged military noise exposure as electronic hearing testing conducted during service, at discharge, and at the current examination did not show a significant threshold shift beyond normal variability while in service. In contrast, at the May 2014 VA examination, the Veteran reported that his tinnitus may have begun while in service and, at the April 2016 Board hearing, he testified that he has consistently experienced ringing and buzzing in the ears since service. As noted above, the Veteran is competent to report the onset and presence of tinnitus, and he has been consistent in his reports. Furthermore, the Board has no reason to doubt his credibility. In this regard, 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). Moreover, as noted above, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles, supra. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. Accordingly, the Board resolves all doubt in the Veteran’s favor and finds that his currently diagnosed tinnitus had its onset in service. Therefore, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Entitlement to service connection for asthma, to include as due to exposure to herbicide agents. The Veteran contends that his currently diagnosed asthma is related to his military service, to include his acknowledged in-service exposure to herbicide agents coincident with his service in Vietnam. At his April 2016 Board hearing, he reported that, as a result of his service in Vietnam, he was exposed to herbicide agents, had to lay down in the dirt and dust during mortar attacks, and used a solution to clean his guns. The Veteran and his spouse also testified that he was always short of breath after he separated from the service. Thus, he claims that service connection for asthma is warranted. In May 2016, the Veteran’s VA treatment provider indicated that, while the Veteran was diagnosed with asthma in 2000, such does not indicate that the asthma itself started at the time of diagnosis. Rather, he opined that it could have started many years before and simply not been diagnosed until a later date. However, the medical opinion is inadequate to decide the claim for service connection because the examiner did not offer a conclusion as to whether the Veteran’s asthma is directly related to his military service. To date, the Veteran has not been provided a VA examination so as to determine the nature and etiology of his asthma. In this regard, while asthma is not acknowledged to be presumptively related to exposure to herbicide agents, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, in light of the Veteran’s reported in-service exposure to herbicide agents, dirt and dust, and cleaning solution, his and his spouse’s reports of experiencing shortness of breath since such time, and his current diagnosis of asthma, the Board finds that a remand is necessary in order to afford him a VA examination so as to determine the nature and etiology of such disorder. 3. Entitlement to service connection for obstructive sleep apnea, claimed as due to exposure to herbicide agents and/or as secondary to service-connected PTSD. The Veteran contends that his currently diagnosed sleep apnea is a result of his military service and/or his service-connected PTSD. Specifically, at the April 2016 Board hearing, the Veteran testified that he began experiencing symptoms of waking up at night and gasping for air about 6 months to a year following his separation from service, and argued that such disorder was present in service, but undiagnosed. Additionally, his spouse testified that she noticed the Veteran had difficulty sleeping, to include gasping for air, about 6 months after his separation. Thus, he claims that service connection for asthma is warranted. In October 2014, the Veteran’s VA treatment provider indicated that a large number of combat veterans with PTSD are given CPAP to help with sleep apnea and studies have shown that good adherence to the CPAP leads to improvement in sleep and a lessening of PTSD-related nightmares. He further noted that the Veteran was very compliant with his CPAP and felt the is getting more restorative sleep and a decrease in nightmare activity. However, such statement does not address whether the Veteran’s PTSD caused or aggravated his sleep apnea. In February 2015, the Veteran was afforded a VA examination, at which time a diagnosis of obstructive sleep apnea was noted, which was observed to have been confirmed by a November 2013 sleep study. However, the examiner opined that it was less likely than not that the Veteran’s sleep apnea was due to or the result of his service-connected PTSD. As rationale, he stated that obstructive sleep apnea is likely influenced by a combination of factors, including airway anatomy, body habitus, stability of the respiratory control systems and obesity. However, he noted that PTSD and alcohol dependence are not known risk factors associated with obstructive sleep apnea. However, no opinion addressing whether the Veteran’s sleep apnea is directly related to his military service, to include his acknowledged in-service exposure to herbicide agents, or aggravated by his service-connected PTSD. Furthermore, in July 2014 and November 2020, the Veteran and his representative, respectively, submitted numerous medical articles suggesting a possible relationship between PTSD and sleep apnea. Consequently, the Board finds that a remand is necessary in order to obtain an addendum opinion that addresses all relevant inquiries and considers such medical articles. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination in order to determine the nature and etiology of his asthma. The record, to include a copy of this Remand, should be provided to the VA examiner and all indicated tests should be conducted. Thereafter, the VA examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed asthma had its onset, or is otherwise related to, his military service, to include his in-service exposure to herbicide agents, dirt and dust, and cleaning solution. In offering such opinion, the examiner should consider the Veteran’s and his spouse’s statements that he has experienced shortness of breath since his separation from service, and his VA treatment provider’s May 2016 statement that, while asthma may have been diagnosed in 2000, it could have been present for many years prior to such date. A rationale for any opinion offered should be provided. 2. Return the record, to include a copy of this Remand, to the February 2015 VA examiner who addressed the etiology of the Veteran’s sleep apnea. If he is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of the record, the examiner should offer an opinion as to the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed obstructive sleep apnea had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service exposure to herbicide agents? (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed obstructive sleep apnea is caused by or aggravated by his service-connected PTSD? For any aggravation found, the examiner should state, to the best of their ability, the baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering the foregoing opinions, the examiner should consider the Veteran’s and his spouse’s reports that he experienced symptoms of waking up and gasping for air six months following his separation from service, and medical articles submitted by the Veteran and his representative in July 2014 and November 2020, respectively, that suggest a possible relationship between PTSD and sleep apnea. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.