Citation Nr: 21012349 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-03 898A DATE: March 4, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT The evidence supports a finding that a tinnitus disorder began during active service or is otherwise related to an in-service injury or disease. The Veteran’s tinnitus manifested to a compensable degree during the one-year period following the discharge from service. CONCLUSION OF LAW As tinnitus is presumed to have been incurred in service and such presumption has not been rebutted, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had a period of active duty service from November 2002 to April 2003 and from September 2004 to March 2011. He testified before the undersigned at a hearing in December 2020 for the above claims. A transcript is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2020). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38U.S.C. §5107 (2012); 38C.F.R. §3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is on the list of diseases presumed to have been incurred in-service and receives a one-year presumption. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus is related to noise exposure he experienced in-service. The Veteran’s service treatment records (STRs) are bare for any complaints, diagnosis, or treatments for tinnitus. At the Veteran’s examination prior to discharge, the examiner noted that the Veteran’s hearing tested normal with no signs of acoustic trauma. The Veteran denied ear trouble, hearing loss, and running ears at discharge. In a February 2013 VA C&P tinnitus examination, the examiner diagnosed the Veteran with tinnitus. The examiner opined that it is less likely than not that the Veteran’s tinnitus is caused by noise exposure in-service. During the examination, the examiner noted that the Veteran reported noise exposure in-service because he worked on airplanes. The examiner explained that the Veteran’s hearing tested normal in his most recent hearing loss examination. She also noted that the Veteran’s service treatment record reveals no complaints, diagnosis, or treatment for tinnitus prior to discharge. The examiner noted that although the Veteran reported working with airplanes in-service, he explained that he wore protective earphones. The Board also reviewed the Veteran’s lay statements and hearing testimony that his tinnitus was connected to events which occurred in-service. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of tinnitus symptoms which are observable to his senses and there is no reason to doubt his credibility. Here, the Board finds the Veteran’s reports of the in-service onset of his tinnitus and its continuation thereafter both competent and credible. Further, the Veteran’s statements also amount to evidence of continuity of symptomatology which would warrant consideration of 38 C.F.R. § 3.303 (b), as well as the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a). As such, the Board finds that the Veteran’s statements are sufficient to establish service connection in this instance. In so finding, it acknowledges that the examiner who conducted the February 2013 VA audiological examination opined that the Veteran’s current tinnitus was not related to service, stating that the Veteran’s hearing tested normal in his most recent hearing loss examination. The examiner also noted that the Veteran’s service treatment record reveals no complaints, diagnosis, or treatment for tinnitus prior to discharge. However, the Board finds this opinion less probative as it does not address the Veteran’s statements during that examination. With respect to the Veteran’s statements, in his December 2020 hearing testimony the Veteran reported that his entrance military occupational specialty (MOS) was an aviation ordinance specialist. The Veteran also reported that at the time he experienced loud noise exposure during service while working around loud aircraft from 1992 to 2002. As noted above, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. Charles, supra. See also Kahana v. Shinseki, 24 Vet. App. 428 (2011). There is no reason to doubt the credibility of the Veteran’s statements, particularly given the fact that he complained of tinnitus within the one year period of discharge from his second period of service in a January 2012 VA compensation claim. Thus, the Board has determined that continuity of symptomology has been established to grant the Veteran’s claim of service connection for tinnitus. See Walker, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Here, in light of the Veteran’s competent and credible reports on examination of tinnitus manifested to a compensable degree during the one-year period following the discharge from service, and more recently the Veteran's competent and credible lay statements at his December 2020 Board hearing describing ringing in his ears that began in service and continued thereafter, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current tinnitus was incurred in service. Hence, affording him the benefit of the doubt, service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder and right ankle disorder is remanded. The Veteran asserts that his right shoulder and right ankle disorder are related to his time in-service. The Veteran’s STRs reveal that the Veteran reported right shoulder pain in August 2005. The examiner diagnosed the Veteran with tendinitis of the right rotator cuff. The examiner noted a gradual onset starting in January 2005 and progressively worsening. At an examination prior to discharge, the Veteran did not report any right shoulder pain and reported negative for any swelling, arthritis, or joint pain. In a July 2011 VA outpatient treatment examination, the Veteran underwent a right shoulder radiograph. The examiner noted mild degenerative changes with no acute fracture or dislocation. In a July 2011 VA outpatient examination, the Veteran reported severe pain in his right shoulder with a pain rating of 5 on a scale of 10. The Veteran noted that the pain increases to a 10 of 10 when he is lifting weights. In a February 2013 VA C&P shoulder conditions examination, the Veteran reported injuring his right shoulder in-service. The examiner diagnosed the Veteran with tendinitis of his right shoulder and noted flexion and extension as normal. He noted some functional impairment of the Veteran’s right shoulder but noted no occupational impairments. The examiner also diagnosed pain on movement with functional loss. The examiner opined that it is less likely than not that the Veteran’s reported right shoulder tendinitis is the direct result of injuries he sustained while in-service. The examiner noted no documentation displaying any structural damage in-service and explained that the Veteran’s reported tendinitis would have typically healed in one to two months and would not be a source of chronic shoulder pain directly related to service. Turning to the Veteran’s right ankle disorder, September 2007 STRs reveal that the Veteran received treatment for a sprained right ankle in-service. At an examination prior to discharge the Veteran did not report any ankle pain and reported negative for any swelling, arthritis, or joint pain. In a February 2013 VA ankle C&P examination, the Veteran reported injuring his ankle in-service. The examiner diagnosed the Veteran as negative for any right ankle condition and noted normal flexion and extension. Pain and functional impairment were also noted. The examiner reported no documentation displaying any structural damage. The examiner also noted no occupational impairments and opined that it is less likely than not that the Veteran’s reported pain in his right ankle is the direct result of an injury he sustained while in-service. Although the Veteran reported a right ankle sprain in-service, the examiner explained that the sprain would have typically healed in one to two months and was not the source of his reported chronic right ankle pain related to service. In light of the Veteran’s lay statements regarding his symptoms, the Board observes that the Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Since Layno, Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” The Board observes that Saunders does not eliminate the need for underlying pathology, disease, or injury (also sometimes called a diagnosis). We note that Saunders was in the context of the musculoskeletal system, though it does not explicitly hold that it is limited to such circumstances. Recently, the United States Court of Appeals for Veterans Claims (Court) in Martinez-Bodon v. Wilkie clarified that the Federal Circuit’s decision in Saunders is not limited to pain. Rather, the definition of “disability” in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) includes any “condition” that results in “functional impairment of earning capacity,” including a psychiatric condition. Here, the Veteran has competently reported continuity of various right shoulder and right ankle symptoms since separation and the VA examiners reported pain with functional loss in both extremities. The law regarding impairment due to pain has been clarified by way of Saunders. VA treatment records corroborate the Veteran’s lay history. The Veteran has advanced a theory of entitlement that includes direct service connection based upon in-service right shoulder and ankle pain. As such, the Board finds the February 2013 VA examinations inadequate pursuant to Saunders. Therefore, the Veteran should be afforded another VA right shoulder examination that considers the lay statements, hearing testimony, treatment records, and includes a medical opinion for direct service connection for a right shoulder and right ankle disorder. See Combee, McLendon, both supra. The medical examination must also assess the functional impairment of the right shoulder and ankle disabilities, and associated pain itself. See Saunders v. Wilkie, Id. If such functional impairment is shown, an opinion must also be obtained as to the question of whether it is as likely as not related to the Veteran’s period of service. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea is related to his time in-service. The Veteran’s service treatment records (STRs) are bare for any complaints, diagnosis, or treatments for sleep apnea. At the Veteran’s examination prior to discharge, the Veteran did not report any sleeping disorders. The Veteran reported negative for any ear, nose, or throat issues. In a July 2012 private sleep apnea examination, the examiner diagnosed the Veteran with obstructive sleep apnea and prescribed a CPAP machine. The Veteran reported a history of snoring, waking up tired, and trouble maintaining sleep. The examiner noted the Veteran’s weight at 290 lbs. with a body mass index of 37.2 lbs. The prescribed weight loss along with a CPAP machine. In August 2012, the Veteran underwent a private sleep exam and was diagnosed with obstructive sleep apnea. The examiner noted the Veteran weight at 290 lbs. with a body mass of index of 37.2 lbs. The examiner prescribed weight loss along with a CPAP machine. In a March 2013 VA C&P sleep apnea examination, the Veteran reported that his sleep apnea began in-service. The examiner diagnosed the Veteran with obstructive sleep apnea. The examiner did not opine as to the etiology of the Veteran’s sleep apnea. In a December 2020 Board hearing before the undersigned, the Veteran reported that he began experiencing sleep apnea symptoms around 2008 when his weight increased. The Veteran also reported that he underwent a sleep study around that time period and was diagnosed with sleep apnea. The Veteran also submitted a December 20202 statement from his wife reporting that the Veteran’s sleep apnea symptoms began approximately 10 years ago and increased in severity over time. Evidence of the record indicates that the Veteran has not undergone a VA examination, nor received a medical opinion concerning the etiology of his reported sleep apnea since the submission of the new evidence above. Furthermore, the examiner did not address the Veteran’s credible testimony of in-service symptomology concerning the pathology o his sleep apnea. In order to afford the Veteran every right of due process, a VA examination along with an opinion needs to be scheduled to further investigate the Veteran’s claim. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. This should include any sleep studies, right shoulder, and ankle examinations. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and is representative should be notified. 2. After the foregoing development has been completed to the extent possible, schedule the Veteran for any pertinent examinations for his remanded disabilities for which service connection is sought. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner must provide a full description of all symptoms and manifestations associated with the Veteran's remanded disabilities above. The examiner's opinions should address the Veteran’s particular remanded and answer the following: (a) (For the right shoulder examiner); taking into consideration the Veteran’s treatment for right shoulder tendonitis in-service, is it at least as likely as not (50 percent or greater probability) that the onset of the Veteran’s reported chronic right shoulder disorder is related to an in-service event or occurrence? The examiner should discuss the Veteran’s reported continuity of various right shoulder symptoms including any pain with functional impairment since separation. The examiner should also discuss the Veteran’s in-service treatment for right shoulder tendonitis as related to his present symptomology. If the onset of a right shoulder disorder is not found to be related to the Veteran's time in-service, that should be specifically set out with the factors considered in making that determination. (b) For the right ankle examiner); taking into consideration the Veteran’s treatment for a right ankle sprain in-service, is it at least as likely as not (50 percent or greater probability) that the onset of the Veteran’s reported chronic right ankle pain is related to an in-service event or occurrence? The examiner should discuss the Veteran’s reporting continuity of various right ankle symptoms including any pain with functional impairment since separation. The examiner should also discuss the Veteran’s in-service treatment for a right ankle sprain as related to his present symptomology. If the onset of a right ankle disorder is not found to be related to the Veteran’s time in-service, that should be specifically set out with the factors considered in making that determination. (c) (For the sleep apnea examiner); Taking into consideration the Veteran reported that he was diagnosed in-service with sleep apnea in 2008, but that he has had it since his active military service, it is as likely as not (50 percent or greater probability) that the onset of the Veteran’s sleep apnea is related to a in-service event or occurrence. The examiner should discuss the Veteran’s reporting of an in-service sleep study and his diagnosis of sleep apnea. The examiner should also discuss the Veteran’s reporting of weight gain as possibly causing the onset of his sleep apnea. If the onset of a sleep apnea disorder is not found to be related to the Veteran's time in-service, that should be specifically set out with the factors considered in making that determination. The examiner should provide a complete rationale for all opinions entered. Please reconcile/differentiate your opinion with the other opinions on file and provide a complete medical rationale. If the examiner cannot provide any of the requested opinions, they must affirm that all procurable and assembled data was fully considered, and a detailed rationale must be provided for why an opinion cannot be rendered. 3. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any examination report to ensure that it is in complete compliance with the directives of this remand. The AOJ must also ensure that the examiner documents consideration of the electronic claims file including any records contained in Virtual VA and VBMS. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 4. Thereafter, readjudicate the issues on appeal as noted above. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris 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.