Citation Nr: 21010920 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 12-32 074 DATE: February 26, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to initial increased ratings for basal cell carcinoma of the right temporal area, currently rated as noncompensable is remanded. Entitlement to an initial increased rating for scars secondary to basal cell carcinoma of the right temporal area, currently rated as 30 percent disabling from August 1, 2013 is remanded. FINDINGS OF FACT 1. The Veteran’s sleep apnea is not attributable to service. 2. The Veteran’s tinnitus is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1964 to August 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In a July 2010 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for sleep apnea. In his October 2012 substantive appeal for service connection for sleep apnea, the Veteran indicated that he was requesting an optional Board hearing. Thereafter in a January 2013 statement in support of claim, the Veteran clarified that he was requesting an Informal hearing and not a Board hearing and in July 2014, the Veteran testified before a Decision Review Officer (DRO). A transcript of that hearing is of record. In his May 2017 substantive appeal, the Veteran indicated that he did not want an optional Board hearing for the issues of service connection for tinnitus and basal cell carcinoma. To the extent the Veteran had an outstanding Board hearing request, in a December 2020 correspondence, the Veteran was notified of the options to request a Board hearing and given an opportunity to request one, but to date he has not requested a Board hearing; thus, the Board will proceed with his May 2017 substantive appeal and statements, declining a Board hearing. In an October 2013 rating decision, the AOJ granted service connection for basal cell carcinoma of the right temporal area and assigned a 100 percent rating effective November 13, 2009 and a noncompensable rating effective August 1, 2013. As the 100 percent rating assigned prior to November 13, 2009 is the maximum rating allowed, the period is excluded from the decision below. The issue has been rephrased accordingly. In a September 2014 rating decision, the AOJ granted service connection for scars secondary to basal cell carcinoma of the right temporal area and assigned a 30 percent disability rating, effective August 1, 2013. In a July 2015 rating decision, the AOJ continued the 30 percent rating for scars, secondary to basal cell carcinoma of the right temporal area. The Board notes that the March 2018 Board remand noted that in a July 2015 rating decision, the AOJ continued the 30 percent rating for scars and the noncompensable rating basal cell carcinoma of the right temporal area and the Board took jurisdiction of the issue of an increased rating for basal cell carcinoma scars with the claim for increase rating for basal cell carcinoma. In this regard basal cell carcinoma of the right temporal area is rated under Diagnostic Code 7833, which considers ratings under scars; disfigurement of the head, face, or neck; or impairment of function, the 30 percent rating assigned for scars secondary to basal cell carcinoma is considered; therefore the Board took jurisdiction of the scars. In a May 2016 rating decision, the AOJ denied service connection for tinnitus, including as secondary to basal cell carcinoma of the right temporal area. In July 2014, the Veteran testified before a Decision Review Officer (DRO); a transcript of that hearing is of record. These matters were previously remanded by the Board in March 2018 for development and have been returned to the Board for appellate review. Service Connection Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for sleep apnea is denied. The Veteran contends that his current sleep apnea began in service. At the outset, the Board notes that the Veteran has been diagnosed obstructive sleep apnea. Regarding the in-service event, the Board notes the Veteran’s service personnel records indicate he had in-country service in the Republic of Vietnam from August 22, 1966 to August 21, 1967; thus, herbicide exposure in service is conceded. See Form DD-214. Further, the Veteran reported that he was exposed to chemical spills while serving in Vietnam, specifically when a tanker blew up in 1966/67. See July 2014 DRO hearing transcript at 3. He reported having a conversation with his Sergeant in which they discussed that they both “snorted” and wondered if it was related to the chemical exposure. Id. In a July 2014 buddy/lay statement, the Veteran’s spouse reported that she has witnessed him snore since he returned from service in August 1967. Review of the Veteran’s service treatment records (STRs) do not support the Veteran had complaints, treatment, symptoms, or diagnosis of sleep apnea. Instead, STRs include a September 1964 enlistment report of medical examination that indicated the Veteran had normal nose, sinuses, mouth, and throat. An August 1965 pre-induction report of medical examination indicated the Veteran had normal nose, sinuses, mouth, and throat. An August 1967 report of medical history at separation indicated the Veteran reported being in good health and that he did not now have nor has he ever had ear, nose, or throat trouble or trouble sleeping. An August 1967 report of medical examination at separation indicated the Veteran had normal nose, sinuses, mouth, and throat with no abnormalities noted. As to whether the Veteran’s sleep apnea is related to service, the October 2019 VA examiner opined that the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by an in-service injury, event or illness. The examiner explained that based on interview and examination of the Veteran, review of the claim file, review of the VA medical records, and review of relevant medical references, the Veteran’s obstructive sleep apnea condition was neither incurred during or caused by event, injury, or circumstances during his military service. The examiner stated that the most significant factor for developing obstructive sleep apnea is obesity and it is noted that the Veteran was diagnosed with obstructive sleep apnea in 1987 and had a uvulopalatopharyngoplasty (UPPP) procedure done. The examiner explained that the only indication for UPPP is obstructive sleep apnea and at the time that the Veteran had the UPPP procedure he is documented as being obese. The examiner stated the Veteran had no documented breathing problems nasal or otherwise in his STRs and explained that is significant and most importantly the Veteran has no record of sleep disturbances or sleep disrupted breathing in his available STRs. To the extent that the Veteran has asserted that his sleep apnea is related to service, the Veteran has made conflicting statements relating to the onset of his sleep apnea, stating both that the condition began in service and also that is started in 2002, which would be over 30 years after service separation. See October 2012 VA Form-9. Further, there is no indication that the Veteran possesses the requisite medical knowledge, experience, or education to render a diagnosis of the condition or probative opinion involving medical causation. See Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, his statements regarding the etiology of his sleep apnea disability are insufficient to establish a nexus to service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 470-472 (1994). Given the above, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection for sleep apnea. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. 2. Entitlement to service connection for tinnitus is granted. The Veteran contends that he has tinnitus which began in service and has worsened post-service. At his July 2014 DRO hearing, the Veteran testified that while in Vietnam a tank exploded right next to where he was stationed. See July 2014 DRO hearing testimony at 3. In a November 2014 correspondence, the Veteran reported that while stationed in Vietnam, he was exposed to gunfire, planes, mortars, and loud engine noises. The Veteran has a current diagnosis of tinnitus and he is competent to report its onset during active service. Tinnitus is uniquely lay observable. Consequently, the Veteran is competent to determine that lay-observable symptomology such as a ringing sound in his ears existed in service and has continued intermittently since service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). While the February 2015, May 2016, October 2019, and April 2020 VA examiners found the Veteran’s tinnitus was not due to service, the examiners’ rationales were inadequate as they largely relied on the lack of evidence in service treatment records. The Board notes some ambiguity in the Veteran’s reports of onset; however, the Board finds the Veteran’s reports upon May 2016 VA examination that he first began experiencing tinnitus in service and it has worsened since service highly probative. The Board therefore gives more probative weight to the Veteran’s reports of having experienced tinnitus in service and since service. Therefore, the preponderance of the evidence weighs in favor of finding that the Veteran’s tinnitus had its onset during his active service. REASONS FOR REMAND 1. Entitlement to an initial increased ratings for basal cell carcinoma of the right temporal area, currently rated as noncompensable is remanded. 2. Entitlement to an initial increased rating for scars secondary to basal cell carcinoma of the right temporal area, currently rated as 30 percent disabling from August 1, 2013 is remanded. The Board regrets the additional delay but finds that remand for VA addendum opinion is needed to address the Veteran’s basal cell carcinoma disability. In the March 2018 Board remand, the Board directed that on remand the VA examiner should indicate whether the Veteran has experienced any active basal cell carcinoma since August 1, 2013, and if so, the examiner should indicate whether the active cancer required any therapy that was comparable to that used for systemic malignancies (i.e., systemic chemotherapy, X-ray therapy more extensive than the skin, or surgery more extensive that wide local excision). Thereafter, the Veteran was afforded a November 2019 VA examination; however, while the examiner listed multiple biopsies and excisions, the examiner did not provide a determination as to whether the Veteran has experienced active basal cell carcinoma since August 1, 2013. Further, the examiner did not provide an explanation as to whether any active cancer required any therapy that was comparable to that used for systemic malignancies (i.e., systemic chemotherapy, X-ray therapy more extensive than the skin, or surgery more extensive that wide local excision). Therefore, remand for addendum opinion is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the basal cell carcinoma issue being remanded significantly impacts the scars issue; the Board finds these issues are inextricably intertwined and the claim for increased rating for scars secondary to basal cell carcinoma is also remanded. The matters are REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. Then, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has experienced any active basal cell carcinoma since August 1, 2013. If so, the clinician should indicate whether the active cancer required any therapy that was comparable to that used for systemic malignancies (i.e., systemic chemotherapy, X-ray therapy more extensive than the skin, or surgery more extensive that wide local excision). A complete description and explanation should be provided. To the extent possible, any skin manifestations of the Veteran’s service-connected basal cell carcinoma should be distinguished from those of any other skin disorder present. A complete rationale should be provided for any opinion expressed. If any opinion cannot be rendered without resorting to speculation, the clinician must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the clinician, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. (CONTINUED ON NEXT PAGE) 3. If upon completion of the above the issues remain denied. The appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.