Citation Nr: 21031866 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-33 233 DATE: May 24, 2021 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for sleep difficulty, to include sleep apnea, claimed as secondary to tinnitus is denied. FINDINGS OF FACT 1. The Veteran's tinnitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had a sleep disorder, to include sleep apnea at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for sleep difficulty, to include sleep apnea, claimed as secondary to tinnitus have not 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 May 1990 to July 1993. He had a period of active duty for training (ACDUTRA) from September 1988 to December 1989 and an unverified period of service from July 1981 to February 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was notified of his scheduled November 2018 Board hearing in October and November 2018; however, he failed to report for his scheduled hearing without showing a good cause. Therefore, his hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.603(d). These matters were remanded by the Board in December 2018 for further development, which has since been completed. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability and includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for tinnitus. The Veteran asserts that his tinnitus is due to in-service acoustic trauma. Specifically, in his February 2016 notice of disagreement, the Veteran stated that he spent six weeks on the USS McCandless (fast frigate) out of GITMO in 1990, and they had no berthing left, so he was placed in a bunk-head adjacent to the engine room. He further noted that while on board, he suffered from nausea, diarrhea, and headaches, and had to receive bottles of IV fluids as a result of balance and dehydration issues. He also stated that while stationed at the naval submarine base in New London/Groton, he went to the base hospital twice due to dizziness and balance issues, and both times he was given Dramamine/motion sickness medicine and sent home. Additionally, he noted that he visited the Great Lakes Naval Clinic in 1990 for motion sickness or what he thought was balance issues. Military service records confirm the Veteran's assignments to USS McCandless, a naval submarine base in Rhode Island and in Groton, and at the Great Lakes Naval station. He has a current diagnosis for bilateral tinnitus. See January 2016 VA examination. The question for the Board is whether his tinnitus was shown as chronic in service, manifested to a compensable degree within one year of separation, or was noted in service with attributable continuity of symptomatology. After review of the evidence of record, the Board finds that service connection is not warranted. During the Veteran's first period of service, he waived his right to a separation examination in February 1982. There were no service treatment records during this first period for complaints of or treatment for ringing of the ears, dizziness, or tinnitus. On his August 1988 Report of Medical History (RMH), prior to being commissioned to the U.S. Navy, he denied ear, nose, or throat trouble. The physician's summary box noted negative medical history for the Veteran. A commissioning RMH dated about one month later also showed that he denied the same. There were no other records addressing further complaints of or treatment for dizziness or ringing of the ears. In August 1990, he was seen on the USS McCandless for complaints of diarrhea for the past five days, along with feeling lightheaded or dizzy. The assessment was viral gastroenteritis with second degree dehydration. He was given IV fluids. A follow-up record dated one day after showed the Veteran reported 'feeling much better to full duty.' Other service treatment records during the third period showed he was seen at a Naval hospital in Groton in January 1991 for complaints of dizziness and nausea; in August 1992 for complaints of congestion and itchy eyes; and in February 1993 for complaints of sore throat. He was assessed with viral labyrinthitis in 1991, allergic rhinitis in 1992, and an upper respiratory infection, in 1993. There were no follow-up treatment records for each of these visits. On his April 1993 Report of Medical History (RMH), the Veteran reported that he was in excellent health and denied ear, nose, or throat trouble. His April 1993 separation examination was normal for nose, sinuses, mouth and throat, ears, and drums, on clinical evaluation. In May 2013 he was seen by Dr. R.A.G. for complaints of pressure and dizziness. He reported its duration has been the past two weeks. Dr. R.A.G. assessed him with tinnitus. He had an audiogram with the same provider one week later. On the audiogram report, Dr. R.A.G. noted the Veteran has had tinnitus bilaterally for approximately three weeks. He had no dizziness or hearing loss, and that after he took medication for one week, his 'tinnitus has started to decrease in intensity.' In January 2016, the Veteran underwent a VA audiology examination, at which time, he reported bilateral, constant, recurrent tinnitus that started in service and affected his sleep. The examiner opined that his tinnitus was not related to service because the Veteran had no history of noise exposure in service. Furthermore, the examiner stated that as there was no evidence of hearing loss, and as such, tinnitus could not be linked to it. The Veteran has not established medical care at VA. On his notice of disagreement, the Veteran argued that the January 2016 VA examiner never asked why or how he had tinnitus, but just asked what his job title was in the U.S. Navy. When he said lawyer/JAG, the examiner smiled and conducted the hearing examination. Lastly, he stated that he was not diagnosed with tinnitus and associated sleep issues until 2012 or 2013 when he saw a specialist and stated that he suffered from it since his "shipboard experience." As a result, the Board remanded this matter for consideration of his contentions. Pursuant to the remand, a VA-contract addendum opinion was obtained in October 2019. The examiner found that the Veteran had noise exposure but opined that his tinnitus was less likely than not due to service, to include the reported noise exposure. The rationale was that although noise exposure is reported, auditory damage and tinnitus and noise as etiology for tinnitus is not conceded based on noise alone. The examiner explained that there must be a nexus of auditory damage to relate current tinnitus to military noise and not a possible etiology. There was no significant permanent shift in hearing thresholds in either ear at separation from service and there were no reports of tinnitus during service. The evidence is against a nexus to related current tinnitus to military-experienced noise. Given the foregoing, the Board finds that a link has not been shown to warrant service connection. In reaching this conclusion, the Board notes that despite the Veteran's assertion that he suffered from tinnitus or dizziness or nausea related to tinnitus in service, the service treatment records do not show complaints, treatment, or diagnoses of such relation to tinnitus. Rather, his assertion of nausea, diarrhea, and receiving IV fluids was due to viral gastroenteritis with second degree hydration in August 1990 aboard the USS McCandless. The record showed that he reported he was feeling much better one day after. There were no subsequent complaints for these same symptoms. His visits to the naval submarine base hospital were attributed to diagnoses of viral labyrinthitis in 1991. Other diagnoses were for allergic rhinitis and acute upper respiratory infection. There has been no evidence of treatment at the Great Lakes naval clinic on review, and there has been no diagnosis for tinnitus during service. He separated from active duty in 1993, reporting that he was in excellent health, and his ears, sinuses, mouth and throat trouble, and nose were found to be normal on clinical evaluation. Instead, the evidence reflects that the onset of the tinnitus was after service. The claims file does not otherwise contain competent medical evidence indicating that tinnitus had onset during service or is otherwise etiologically related to service. The Board finds the January 2016, when taken in connection with the October 2019 nexus opinion, and unfavorable on the matter of causation, to be most probative. The 2019 examiner considered all relevant information regarding noise exposure and the history of the disability and supported the nexus opinion with cogent rationale. For these reasons, service connection is not warranted, as the competent and probative evidence weighs against finding a link directly. While the Veteran is competent to report having experienced symptoms of tinnitus in service, he is not competent to provide an opinion as to its etiology of his current tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board finds that the Veteran is not credible as to its onset. The records from Dr. R.A.G. showed that the Veteran reporting his tinnitus began only two to three weeks prior to being seen in May 2013 and not since his shipboard experience, as he asserted. Lastly, the first indication of tinnitus was not until 2013, which is many years after separation from service. There is no medical evidence to the contrary. As there is no competent and credible evidence showing his tinnitus manifested to a compensable degree within a year of service discharge, service connection cannot be presumed. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). In sum, the evidence shows the Veteran has a current diagnosis of tinnitus. However, the preponderance of the competent and credible evidence weighs against finding a causal nexus between the disability and active service. Accordingly, there is no reasonable doubt to be resolved in this instance. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection is not warranted. 2. Entitlement to service connection for sleep difficulty, to include sleep apnea, claimed as secondary to tinnitus. The Veteran asserts he has sleeping difficulties, to include sleep apnea, due to his tinnitus condition. Service treatment records during his service periods are silent for troubles sleeping or for a sleep disorder. On his April 1993 RMH, the Veteran reported that he was in excellent health and denied frequent trouble sleeping. The accompanying separation examination was normal for nose, sinuses, mouth and throat, ears, and drums, on clinical evaluation. Private treatment records from Dr. R.A.G. in May 2013 do not reflect medical history of sleeping issues or provide a diagnosis for a sleeping disorder. At the January 2016 VA audiology examination, the Veteran reported that his tinnitus affected his sleep. The Veteran has not sought VA treatment. After careful review of the evidence, the Board finds that service connection on a direct or secondary basis is not warranted. The Board concludes that the Veteran does not have current diagnoses of a sleep-related condition, to include sleep apnea and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In reaching this conclusion, the Board has considered the Veteran's statement. See February 2016 notice of disagreement. To the extent the Veteran has asserted tinnitus with associated sleep issues, he is not competent to provide a current diagnosis for VA compensation purposes, as he has not demonstrated that he possesses the requisite medical training or expertise to render a clinical diagnosis. Jandreau, 492 F.3d at 1377 n.4. Seeing there is no objective medical evidence reflecting a current diagnosis for the claimed conditions, the Board finds that the first element for service connection, a current disability, has not been met. Without a current diagnosis, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992). There is no competent evidence of a current sleep-related condition, to include sleep apnea for which service connection can be granted. Thus, the preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for sleep difficulty, to include sleep apnea, claimed as secondary to tinnitus, is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.