Citation Nr: 21014973 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 18-07 088 DATE: March 16, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran’s tinnitus is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1968 to January 1970. The issues come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law judge. The 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. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "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)). 1. Entitlement to service connection for tinnitus The Veteran contends he is entitled to service connection for tinnitus. For the following reasons, the Board finds service connection is warranted. For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, to include tinnitus, if the disability manifests to a compensable degree within one year of discharge from service. See 38 U.S.C. § 1101, 1112, 1113 (2012); 38 C.F.R. § 3.307, 3.309 (2017); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, service connection may be established by a continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b) (2017). The presumption relating to a continuity of symptomatology can be used only in cases involving conditions recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, a current diagnosis of tinnitus is established. The Veteran testified that his ears started ringing after exposure to gunfire and explosions while serving in Vietnam and it has continued ever since. He denied problems with tinnitus prior to active duty. A buddy statement from a Veteran colleague J.H. corroborates the Veteran’s exposure to loud noises in service. The Board finds the Veteran's testimony competent and credible and finds he was exposed to acoustic trauma during active service. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that the Board can weigh the lay testimony and make a determination as to whether the lay testimony supports a finding of in-service incurrence or continuity of symptomatology). Lay evidence is competent and sufficient to establish etiology if the layperson is competent to identify the medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As the Veteran provided credible testimony establishing continuous ringing in his ears since active service, the Board finds that tinnitus is etiologically related to the Veteran's military service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Entitlement to service connection for tinnitus is granted. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his current hearing loss is the result of in-service noise exposure. He testified at the January 2021 Board hearing that he began experiencing hearing problems while serving in Vietnam. He also testified that he had no hearing issues prior to service and has experienced hearing issues from active duty to the present. The Board found the Veteran's testimony to be truthful and credible. As such, this matter is remanded for an addendum VA medical opinion that addresses the Veteran's truthful and credible complaints of continuous hearing loss symptomology. A VA medical opinion was issued in December 2017. The VA examiner gave a negative opinion that the Veteran's hearing loss is due to his active duty service. The examiner found that the Veteran had normal hearing at induction and separation, with no marked threshold shifts in-service. The examiner further stated that there was no record of complaint or treatment of the claimed condition in the Veteran’s service records. The examiner then noted that the Veteran's first documented hearing loss complaints was not until many years after discharge. Furthermore, the examiner referenced an Institute of Medicine (IOM) study in 2006 that concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was “unlikely.” The examiner stated that the IOM study found that the current medical knowledge did not provide for sufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The Board notes that 38 C.F.R. § 3.385 establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). In addition, the examiner failed to address the Veteran's reports of continuous hearing loss symptomology from active duty service to the present. The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination is inadequate based on the examiner's failure to articulate an adequate rationale as well as the failure to consider all of the evidence of record, including the Veteran's reports of continuous hearing problems since discharge, when he rendered his opinion. As such, this matter must be remanded for an addendum VA medical opinion that contains adequate rationale and addresses all the evidence of record. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea is due to or aggravated by his time in service. To date, the Veteran has not undergone a VA examination to determine the etiology of his sleep apnea. Consistent with the VA's duty to assist, under McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Veteran's claims for service connection for obstructive sleep apnea meet all the McClendon elements for a VA examination. The Veteran has submitted medical evidence reporting a current diagnosis of obstructive sleep apnea. The Veteran has also submitted lay statements saying that he had irregular snoring patterns in service that became worse following service. The Veteran further testified that he had regular exposure to explosions while in service. A s such, there is sufficient evidence to trigger the VA's duty to assist by providing a VA examination; however, a VA examination that specifically addresses the nature and etiology of sleep apnea has not been provided. Therefore, a VA examination for an opinion to determine the etiology of the Veteran's sleep apnea is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If any such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the above has been completed to the extent possible, forward the claims file to a medical professional with appropriate expertise for an addendum VA medical opinion regarding the nature and etiology of the Veteran's hearing loss. The claims file must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. If the examiner determines that another VA examination is necessary, one should be scheduled (or a telehealth interview if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the reviewer must address the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss began during service or is etiologically related to exposure to excessive noise during active duty service, including his conceded noise exposure? The examiner must address and reconcile, to the extent possible, the addendum VA opinion and the Veteran's credible complaints of continuous hearing difficulties since active duty service. The examiner is advised that the term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it. The examiner is to assume the Veteran is competent to report on acoustic trauma he was exposed to during active duty and of any hearing loss symptomology he experienced at that time and thereafter. In providing these opinions, the examiner must recognize the fact that no diagnosis of hearing loss in service is not, by itself, a sufficient reason to deny service connection for hearing loss. The examiner must specifically consider and discuss the Veteran's exposure to acoustic trauma in-service consisting of working in close proximity to artillery gunfire without ear protection and continuity of symptoms since service. The opinion and rationale should reflect such consideration. 3. Schedule the Veteran for a VA examination with a medical professional with appropriate expertise. The examiner should review the Veteran's claims file, including a copy of this remand, and comment on the following questions: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea is related to active service or is caused by or aggravated by military service, to include exposure to explosions. (b.) Is it at least as likely as not that sleep apnea is proximately due to or the result of the Veteran's service-connected diabetes melllitus? (c.) If the answer to (b) is negative, is it at least as likely as not that sleep apnea is aggravated (i.e., permanently or temporarily worsened) by service-connected diabetes mellitus? (d.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The examiner is advised that the term “as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examiner should consider and address the Veteran's contention of exposure to explosions and his reported snoring during active service. The examiner should also consider the buddy statement of J.H., who reported that the Veteran’s in-service snoring was distinctive because it was loud and erratic. The examiner should also consider C. M.’s buddy statement where she contends the Veteran’s snoring has gotten worse since service. See August 2018 Buddy/Lay Statement; see also November 2017 Buddy/Lay Statement. The rationale should reflect consideration of the Veteran's, K.K.’s, and C.M.’s statements. If there is a medical basis to support or doubt the history provided, the examiner should so indicate and then provide a fully reasoned explanation for the determination. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner 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 examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   (Continued on the next page) G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.