Citation Nr: 21029695 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-34 987 DATE: May 14, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for an ulcer is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT Tinnitus is etiologically related to acoustic trauma sustained in active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Unites States Marine Corps (USMC) from September 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran filed a timely notice of disagreement with the May 2012 denial of entitlement to service connection for tinea corporis. However, in a May 2016 rating decision, the Veteran was granted entitlement to service connection for tinea corporis (claimed as rashes). There is no indication from the record that the Veteran has disagreed with the rating or effective date assigned in that decision. Therefore, that decision constitutes a full grant of the benefit sought on appeal, and the Board has limited its consideration accordingly. Additionally, in the May 2016 rating decision, the Veteran was assigned a 50 percent rating for his PTSD, effective the date of service connection. That decision does not constitute a complete grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. Service Connection Tinnitus At the outset, the Board acknowledges that additional evidence has been added to the record by VA since the May 2016 statement of the case was issued. As discussed below, the Board finds that the evidence currently of record is sufficient to grant the claim of entitlement to service connection for tinnitus. Therefore, any due process deficiencies with regard to that claim only, constitute harmless error and there is no bar to proceeding with a final decision for that claim at this time. The Veteran has asserted that he has tinnitus that is related to acoustic trauma sustained in active service. The Board notes that the Veteran has been granted entitlement to service connection for bilateral hearing loss disability due to acoustic trauma sustained in active service. As such, hazardous noise exposure during the Veteran's service has been conceded. STRs are silent for any in-service complaints of, treatment for, or diagnosis of tinnitus. However, the Veteran has reported that he first experienced tinnitus during active service, and that the symptoms have continued since that time. The Board notes that the Veteran is competent to report the onset and continuity of his tinnitus symptoms. Moreover, the Board finds the Veteran to be credible in that regard. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Post-service treatment records show that the Veteran receives treatment for his tinnitus from a private medical provider. At a January 2021 Board Hearing, the Veteran reported that his tinnitus had its onset during active service. He reported standing in proximity to firing artillery pieces without ear protection caused pain and ringing in his ears that has continued since service. At a November 2011 VA examination, following audiological examination, the examiner opined that the Veteran's tinnitus was less as not a result of military noise exposure. As rationale, the examiner noted that the Veteran's reported tinnitus onset was around the 1980's, over 10 years after his separation from service. The Board finds that the November 2011 VA medical opinion is inadequate for adjudication purposes. In this regard, the examiner did not consider the Veteran's competent and credible statements regarding the onset and continuity of his symptoms. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify tinnitus, and his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently and credibly reported that he first experienced tinnitus while in active service and that he has continued to experience tinnitus since that time. The Veteran has a current diagnosis of tinnitus, and there is no adequate opinion against the claim. Therefore, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND As discussed above, a wealth of evidence, to include pertinent VA examination reports, has been added to the record by VA since the issuance of the May 2016 statement of the case. The remaining claims on appeal have not been readjudicated following the addition of such evidence. As the evidence of record may not be sufficient to grant the remaining claims in full, those issues must be remanded for consideration of the additional evidence in the first instance by the Agency of Original Jurisdiction (AOJ), and the issuance of a supplemental statement of the case. Additionally, there is medical evidence of record indicating that the Veteran's sleep apnea may be caused or aggravated by the medication he takes for treatment of his service-connected PTSD. As such, the Board finds that a medical opinion should be obtained to determine the nature and etiology of the Veteran's sleep apnea. Additionally, current treatment records should be identified and obtained before a decision is made regarding the remaining issues on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an examination to determine the nature and etiology of his sleep apnea. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's sleep apnea was caused or aggravated (chronically worsened) by a service-connected disability, to specifically include the medication the Veteran takes for treatment of his service-connected PTSD. The rationale for all opinions expressed must be provided. 4. Confirm that VA examination report and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. (Continued on the next page) 5. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, Associate 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.