Citation Nr: 21030178 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-31 508 DATE: May 18, 2021 ORDER An effective date prior to October 9, 2015, for the award of service connection for hearing loss is dismissed. Service connection for tinnitus is granted. Service connection for persistent depressive disorder is granted. Service connection for obstructive sleep apnea (OSA), as secondary to persistent depressive disorder, is granted. REMANDED A rating in excess of zero percent for hearing loss. Service connection for posttraumatic stress disorder (PTSD). FINDINGS OF FACT 1. In August 2020, prior to the promulgation of a Board decision, the Veteran withdrew the appeal of an effective date prior to October 9, 2015, for the award of service connection for hearing loss. 2. The Veteran's tinnitus is related to his active service. 3. The Veteran's persistent depressive disorder is related to his active service. 4. The Veteran's OSA was caused by his persistent depressive disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issue of an effective date prior to October 9, 2015, for the award of service connection for hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for persistent depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for OSA, as secondary to persistent depressive disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to July 1980 and from August 1981 to August 1984. The case is on appeal from a July 2016 rating decision. In August 2020, the Veteran testified at a Board hearing. 1. An effective date prior to October 9, 2015, for the award of service connection for hearing loss. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the Veteran or representative on the record at a hearing, or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. At the August 2020 Board hearing, the Veteran and his representative expressed their intent to withdraw this claim. Specifically, the Veterans Law Judge (VLJ) stated that "there was another issue certified on appeal, an earlier effective date for service connection for hearing loss. It's my understanding that that issue is being withdrawn and the Board will dismiss that. Is that correct?" and the Veteran and his representative both responded "[y]es." The Board finds that the Veteran's withdrawal of this issue is "explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In this regard, the VLJ noted that this issue was being withdrawn, clearly described the consequences of such action (that "the Board will dismiss" the claim) and specifically asked if this was correct and the Veteran and attorney representative both explicitly and unambiguously responded yes. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. Service Connection Legal Criteria 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. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 2. Service connection for tinnitus. With respect to the first element of direct service connection, the Veteran has reported experiencing tinnitus. See March 2016 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) (noting a report of recurrent tinnitus); August 2020 Board Hearing Transcript, Page 4 (testifying that he currently has ringing in his ears). Tinnitus is defined as a noise in the ears, such as ringing. See Dorland's Illustrated Medical Dictionary 1930 (32nd ed. 2012). The Veteran is competent to report as to the presence of tinnitus "because ringing in the ears is capable of lay observation. " See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Based on the Veteran's competent reports of experiencing tinnitus, the Board finds that the first element of direct service connection has been met. With respect to the second element of direct service connection, the Veteran has variously reported that he was exposed to loud noises during his active service. See December 2015 Statement ("During my time in the Army...I was exposed to loud noises for long periods of time. I work on and around heavy equipment. I was also exposed to noise when[]firing weapons"); March 2016 VA Hearing Loss and Tinnitus DBQ ("Veteran reported a history of military noise exposure...He reported working at gun ranges and was exposed to gunfire from other service members. He reported firing small arms...reported exposure to loud alarms and buzzers"); August 2020 Board Hearing Transcript, Pages 4-5 ("While stationed in South Korea and being the unit armor there, I was involved with the firing range...we'd go to range every week and either fire explosives or so forth, cannons, tanks, and so forth. So I was around all this noise...basically weekly"). The Board notes that the Veteran's DD 214 for his last period of active service listed the award of the Expert Rifle M-16 and Hand Grenade badges. Also, in a July 2016 rating decision, the RO granted service connection for hearing loss and stated that the Veteran "had military acoustic trauma." Based on the evidence outlined, the Board finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran's current tinnitus and his active service, the evidence included conflicting opinions. Of record is a negative VA opinion that was provided in March 2016, following examination, by audiologist R.J. This opinion stated that tinnitus was "[l]ess likely than not (less than 50% probability) caused by or a result of military noise exposure." The accompanying rationale stated in full that "Veteran reported tinnitus onset 10 years ago (2006). Tinnitus which is due to military noise exposure would have an onset during active service or close to time of separation." Also of record is a positive private opinion that was provided in September 2020 by Dr. M.F. In this opinion, Dr. M.F. stated that "I have viewed the military and VA medical records, as well as the personnel records, of [the Veteran]." It was further stated that "[the Veteran] has tinnitus from military noise exposure. I disagree with the VA examiner who denied service connection for his tinnitus as he stated that his 'tinnitus due to military noise exposure would have an onset during active service or...close to time of separation'" and that "[a] report from the Audiological Consultants of Atlanta mentions that tinnitus from noise exposure can occur suddenly or gradually. An intermittent pattern of tinnitus can continue for months or years as the periods of tinnitus become longer and longer, eventually becoming constant." The opinion additionally stated that "[i]t is as likely as not that [the Veteran's] tinnitus began with acoustic trauma in service and is, therefore, service connected." In review, as to the issue of nexus, of record is a negative March 2016 VA opinion and a positive private September 2020 opinion. Overall, the Board finds that the evidence is at least in relative equipoise (an approximate balance) as to whether the Veteran's tinnitus is related to his active service and, resolving reasonable doubt in the Veteran's favor, the Board finds that such a nexus exists. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that the third and final element of direct service connection has been met. In sum, the Board finds that the Veteran's tinnitus is related to his active service. This is particularly so when reasonable doubt is resolved in his favor. As such, service connection for tinnitus is warranted. 3. Service connection for a psychiatric condition other than posttraumatic stress disorder (PTSD). Initially, while the Veteran specifically claimed on a December 2015 VA Form 21-526EZ PTSD and the RO adjudicated service connection specifically for PTSD in the relevant July 2016 rating decision and May 2017 statement of the case (SOC), evidence that will be discussed further below showed a diagnosis of persistent depressive disorder. As such, the issue on appeal is broadly construed to include service connection for a psychiatric condition in general. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also August 2020 Board Hearing Transcript, Page 5 and November 2020 Representative Post Hearing Brief (both specifically discussing the applicability of Clemons to this case). The specific issue of PTSD will be addressed in the remand section below. With respect to the first element of direct service connection, of record is an August 2020 report from Dr. Q.A., who was noted to be a licensed psychologist. The report stated that "[d]uring the course of this evaluation, 795 pages of service and medical records were reviewed and substantial clinical interview lasting one hour was conducted with [the Veteran]." It was stated that "[b]ased on the totality of evidence, an accurate psychiatric diagnostic formulation for [the Veteran] would involve persistent depressive disorder." Based on this report, the Board finds that the first element of direct service connection has been met. With respect to the second element of direct service connection, the Veteran has contended that, essentially, his mental health problems started during his active service and continued to the present. See August 2020 Board Hearing Transcript Pages 8-9 (with the representative responding affirmatively to a VLJ statement that "the contention is that those mental health problems did not resolve in service and continued to this day"); November 2015 VA Psychiatry Consult ("[Veteran] began experiencing problems while stationed in Turkey...and later...in Korea"). The Veteran's service treatment records (STRs) included multiple records referencing mental health symptoms. In this regard, an April 1977 STR from a mental health clinic stated that the Veteran was "self referred for adjustment reaction...presents anxiety manifested by 'knot' in stomach [and] sleeplessness." A January 1978 STR noted "nervous, insomnia [times] 5 months" and noted an assessment of anxiety. A July 1978 consultation report STR noted that the Veteran was "seen previously [two times] in this clinic" and that he "was anxious," but that "anxieties have been resolved." A May 1979 STR noted that the "[Veteran complains of] restlessness [and] nervousness" and stated that "anxiety can't be pinpointed." A January 1980 STR noted a complaint of stomach pains and stated "seems to be worse during periods of stress" and an assessment was noted of recurrent ulcer. A June 1980 gastroenterology consultation report STR noted a history of "[e]pigastric discomfort stress related, has markedly improved since he left Turkey." A March 1982 STR noted that the Veteran "[complains of] feeling ten[s]e today." Based on the evidence outlined, the Board finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran's current persistent depressive disorder and his active service, the only competent evidence addressing this issue is the previously discussed private August 2020 report from Dr. Q.A. After an extensive multi-page report outlining the Veteran's history and the evidence of record, Dr. Q.A. stated that the Veteran "has multiple decades of history of diagnosis depression in file. [The Veteran's] depression more likely than not began during the course of his military service" and that the Veteran had "a history of...persistent depressive disorder...more likely than not...related to military service." The Board finds the positive private August 2020 opinion to be sufficient evidence to establish a nexus in this case. This opinion was provided by a licensed psychologist who reviewed relevant records, interviewed the Veteran and prepared an extensive report. The Board notes that there is no competent opinion of record contrary to the conclusion provided in this positive opinion. Based on the August 2020 private opinion, the Board finds that the third and final element of direct service connection has been met. In sum, the Board finds that the Veteran's persistent depressive disorder is related to his active service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for persistent depressive disorder is warranted. 4. Service connection for OSA. At the August 2020 Board hearing, the Veteran's representative stated that "[w]e contend [OSA] is secondary to [the Veteran's] mental health issues." See also November 2020 Representative Post Hearing Brief ("Service connection for sleep apnea, as secondary to mental health, should be granted"). The Veteran also testified at the August 2020 Board hearing that he "started having sleep issues back in the 1980s and the 1990s." See August 2020 Board Hearing Transcript, Page 9. Evidence of record indicated that the Veteran has been diagnosed with OSA. In this regard, VA treatment records reflected that the Veteran underwent a November 2015 pulmonary sleep study and that clinical interpretation of the test included an impression of "[m]oderate [OSA] syndrome." As outlined above, the Board has granted service connection for persistent depressive disorder. In light of this service-connected disability and the evidence of record reflecting a diagnosis of OSA, the remaining issue with respect to secondary service connection is whether the Veteran's persistent depressive disorder caused or aggravated his OSA. As to this issue, the only competent evidence of record is a positive private September 2020 opinion from Dr. M.F. This opinion stated that "I have viewed the military and VA medical records, as well as the personnel records, of [the Veteran]." It was further stated that "[the Veteran] developed [OSA] shortly after his discharge from the service...Around the same time, he was suffering from mental health issues including anxiety, depression and possible PTSD." It was further stated that: Multiple studies have shown an association between OSA and mental health conditions with mood, anxiety and PTSD being highly comorbid with OSA. There is also a higher risk of OSA in patients with psychosis and schizophrenia. Patients with depression, as in this case, exhibit lower levels of serotonin, a neurotransmitter also linked to muscle tone of the upper airways. Decreased serotonin levels increase the likelihood that the upper throat will collapse causing OSA. Dr. M.F. concluded that "[i]t is as likely as not that this [V]eteran's OSA is related to his mental health issues and is, therefore, service connected." The Board finds the positive private August 2020 opinion to be sufficient evidence to establish that the Veteran's OSA is secondary to his service-connected persistent depressive disorder. This opinion was provided by a doctor who reviewed relevant records and provided a rationale in support of the conclusion provided that, essentially, the Veteran's OSA was caused by his mental health issues. The Board notes that there is no competent opinion of record contrary to the conclusion provided in this positive opinion. Based on the Board's grant of service connection for persistent depressive disorder in this decision, the evidence of record reflecting a diagnosis of OSA and the August 2020 private opinion, the Board finds that the requirements for secondary service connection has been met. In sum, the Board finds that the Veteran's OSA was caused by his persistent depressive disorder. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for OSA is warranted on a secondary basis. REASONS FOR REMAND 1. A rating in excess of zero percent for bilateral hearing loss. The Veteran was last afforded a VA examination for his service-connected bilateral hearing loss in March 2016. At the August 2020 Board hearing, he testified that his hearing loss had gotten worse over the past four years. See August 2020 Board Hearing Transcript, Page 3; see also November 2020 Representative Post Hearing Brief (stating that this claim "deserves a remand due to [the Veteran's] increased symptom severity since his last exam"). As such, in light of the reported worsening of the Veteran's disability since the last VA examination, the Board finds that remand is warranted to afford the Veteran a new VA examination to determine the current severity of such disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). In addition, in a June 2020 statement, the Veteran's representative, essentially, requested information as to the qualifications of the examiner who had performed a VA examination. See also November 2020 Representative Post Hearing Brief (referencing the June 2020 request). While not explicitly referenced in the request, the only VA examination that the Veteran has been afforded was the March 2016 VA examination for his hearing loss and tinnitus claims. As such, the Board will construe the representative's request as pertaining to the March 2016 VA examination. Accordingly, on remand, the representative should be provided appropriate information, if available, as to the March 2016 VA examiner's qualifications. See Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) ("Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner"). 2. Service connection for PTSD. There are specific requirements for entitlement to service connection for PTSD outlined in 38 C.F.R. § 3.304(f), which states that "[s]ervice connection for [PTSD] requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in- service stressor occurred." The previously discussed private August 2020 report from Dr. Q.A. also noted a diagnosis of PTSD ("[b]ased on the totality of evidence, an accurate psychiatric diagnostic formulation for [the Veteran] would involve...PTSD") and a nexus to service ("[The Veteran's] PTSD, more likely than not, is related to his military service events" and noting that the Veteran had "a history of PTSD...more likely than not...related to military service"). Two in-service stressors were referenced in the August 2020 report, one related to events in Turkey and a second related to events in South Korea. Both of the reported stressors, which were described in detail, were non-combat stressors. Following a February 16, 2016 letter from the RO requesting specific details as to the Veteran's reported stressors, he submitted on February 19, 2016 statements describing the reported Turkey and South Korea stressors. These statements included a location of the stressors, a date range of the stressors (by way of a notation of the duration of the Veteran's assignments) and detailed descriptions of the stressors. At the August 2020 Board hearing, the Veteran also testified regarding the Turkey and South Korea stressors. See August 2020 Board Hearing Transcript, Pages 6-8. The Board notes that the Veteran's service personnel records reflected that he was stationed in Turkey from January 1979 to January 1980 and in South Korea from September 1981 to September 1982 and that such records noted his assigned organizations. With respect to non-combat stressors, a veteran's lay testimony alone is not sufficient to establish the occurrence of the claimed in-service stressor. See Doran v. Brown, 6 Vet. App. 283, 289 (1994) ("if the claimed stressor is not combat-related, appellant's lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by credible supporting evidence"). Similarly, credible supporting evidence of an in-service stressor cannot be met solely by a medical nexus opinion. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996) ("credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence"). In this case, the RO did not take any action to attempt to corroborate or verify the Veteran's reported Turkey or South Korea stressors. In this regard, without mention of the February 19, 2016 Veteran statements, the RO issued two April 2016 memorandums with the subject of "Formal finding on a lack of information required to corroborate stressor(s) associated with a claim for service connection for [PTSD]." In light of the evidence of record, the Board finds that remand is warranted for the RO to take appropriate action to attempt to verify the Veteran's reported Turkey and South Korea stressors. While on remand, outstanding VA treatment records should be obtained. In this regard, the May 2017 SOC listed under the evidence heading "Treatment records from VAMC, San Diego, from July 19, 2002 through June 28, 2016" and "Additional treatment records from VAMC, San Diego through April 6, 2017." The August 2020 Dr. Q.A. report stated that the Veteran "is presently receiving medication from Dr. H[.] at [VA]." Current VA treatment records of record are dated only up to November 2015. As such, on remand outstanding VA treatment records from November 2015 should be obtained. Finally, the Board notes that in-service mental health treatment records are typically stored separately from a veteran's STRs. Based on the STRs, it appears that the Veteran had in-service mental health treatment and therefore outstanding records may exist. See July 1978 Consultation Report STR (noting that the Veteran was "seen previously [two times] in this clinic"). As such, while on remand, the RO should take appropriate action to attempt to obtain any available in-service mental health treatment records. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records from November 2015. 2. Take appropriate action to attempt to obtain any available in-service mental health treatment records. 3. Take appropriate action to attempt to verify the Veteran's reported Turkey and South Korea stressors. See February 19, 2016 Veteran Statements; August 2020 Board Hearing Transcript, Pages 6-8; August 2020 Dr. Q.A. Report; see also service personnel records reflecting that the Veteran was stationed in Turkey from January 1979 to January 1980 and in South Korea from September 1981 to September 1982, along with notation of his assigned organizations during such service. 4. Provide the Veteran's representative with appropriate information, if available, as to the March 2016 examiner's qualifications. See June 2020 Representative Statement. 5. Afford the Veteran an appropriate VA examination to determine the current severity of his hearing loss. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.