Citation Nr: 21032324 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-10 696A DATE: May 26, 2021 ORDER Entitlement to service connection sleep apnea is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for colon cancer is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is denied. FINDINGS OF FACT 1. The probative medical evidence of record has not shown that the Veteran's diagnosed sleep apnea was the result of any event, injury, or disease in military service. 2. The probative medical evidence of record has not shown that the Veteran suffers from a currently diagnosed bilateral hearing loss for VA purposes that is the result of military service. 3. The probative medical evidence of record has not shown that the Veteran's diagnosed tinnitus was the result of any event, injury, or disease in military service. 4. The probative medical evidence of record has not shown that the Veteran's diagnosed colon cancer was the result of any event, injury, or disease in military service. 5. The probative medical evidence of record has not shown that the Veteran's diagnosed acquired psychiatric disorder was the result of any event, injury, or disease in military service. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 2. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2019). 3. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 4. Colon cancer was not incurred in or aggravated by active service, to include any secondary relationship to service-connected hemorrhoids. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). 5. An acquired psychiatric disorder was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to September 1977 and from July 1979 to September 1997. These matters come before the Board on appeal from Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February 2021. A copy of the transcript is of record and has been reviewed accordingly. Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303 (d). Generally, the evidence 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. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may be granted on a presumptive basis for certain chronic diseases if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Sleep Apnea The Veteran contends that his sleep apnea had its onset in service. In this regard, the Veteran testified at the February 2021 Board hearing that he first noticed sleep apnea during his naval service around 1979 to 1980. He described this condition as resulting from an inability to sleep more than 3 hours per night as well as jitteriness and excessive movements when he laid down. He claims that he was sent to a counselor for this condition, but not a doctor. A review of the Veteran's service treatment records reveals no complaints or diagnoses related to any sleep disorder, to include any referral to a counselor as described by the Veteran. Post-service treatment records show that the Veteran was first seen for complaints of snoring and insomnia in April 2015. He was administered sleep studies in April 2015 and June 2015, with a diagnosis of obstructive sleep apnea confirmed in January 2016. There was no discussion of etiology to the Veteran's military service in any of the outpatient treatment records. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that while the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence weighs against finding that it began during service or is otherwise related to an in-service injury or disease. Treatment records show the Veteran was not diagnosed to have obstructive sleep apnea until several years after his separation from service. While the Veteran is competent to report having experienced symptoms he believes were due to sleep apnea since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his sleep apnea. The issue is medically complex, as it requires knowledge/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Here, there is no probative evidence that links the Veteran's obstructive sleep apnea to service, or that indicates any service connected disability caused or aggravated his sleep apnea, the greater weight of the evidence is against the claim. Accordingly, service connection is not warranted. 2. Bilateral Hearing Loss The Veteran contends that he currently suffers from bilateral hearing loss that is the result of acoustic trauma in military service. In this regard, the Veteran described at his February 2021 Board hearing that he served as an aircraft technician aboard an aircraft carrier. The Veteran also further testified that his hearing loss is primarily the result of interference caused by tinnitus. A review of the Veteran's service personnel records reveal that he worked primarily in specialties dealing with aircraft maintenance and aviation. These activities were shown to place the Veteran in the vicinity of loud aircraft during his military service and would constitute a high level of noise exposure. A review of the Veteran's service treatment records shows that he did not show any complaints or diagnoses of hearing loss during service or at retirement from military service in 1997. The Veteran was provided with a VA examination in August 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 5 15 LEFT 10 10 5 20 25 Speech recognition testing revealed 96 percent for each ear. The Veteran was diagnosed with normal hearing for both ears. No other audiometric testing adequate for VA purposes was available in the Veteran's outpatient treatment records. Based upon the above, the Board finds that the Veteran does not have a bilateral hearing loss for VA purposes and is, thus, not entitled to service connection for such disability. Under the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (upholding the validity of 38 C.F.R. § 3.385 , to define what constitutes a hearing loss disability for VA compensation purposes); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (38 C.F.R. § 3.385 establishes when hearing loss constitutes a disability for entitlement to VA disability compensation benefits). Under the standards established by 38 C.F.R. § 3.385, there is no indication of a bilateral hearing loss "disability" during service or at separation. In fact, the results of the audiometric examinations of record in the instant case are insufficient to establish that a bilateral hearing loss "disability" is indicated at present. See Palczewski, 21 Vet. App. at 178-80; Hensley, 5 Vet. App. at 157. Thus, since section 3.385, as relevant here, prohibits a finding of a hearing loss "disability," where the requisite hearing status is not met, Hensley, 5 Vet. App. at 160, it is therefore apparent that the Veteran's hearing acuity does not constitute a presently existing "disability," for which service connection may be granted. See Palczewski and Hensley, both supra; see also Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). As a consequence, the claim of service connection for bilateral hearing loss is denied. 3. Tinnitus The Veteran contends that he currently suffers from tinnitus that is the result of acoustic trauma in military service. In this regard, the Veteran described at his February 2021 Board hearing that he served as an aircraft technician aboard an aircraft carrier. The Veteran also further testified that his tinnitus has existed at least since military service. A review of the Veteran's service treatment records does not show any treatment or complaints of hearing issues, to include tinnitus. A review of the Veteran's outpatient treatment records does not show any treatment or complaints of hearing issues, to include tinnitus. The Veteran was provided with a VA examination in August 2015. The Veteran was diagnosed with tinnitus, although its onset was not established. The examiner opined that the Veteran's tinnitus was less likely than not the result of any in-service acoustic trauma, because if that had been the case, the Veteran would have demonstrated a threshold shift with hearing loss. As he did not demonstrate these findings, there was no in-service acoustic trauma. Absent the trauma, it was unlikely the tinnitus was related to service. While the Veteran may have been exposed to noise during service, there was no acoustic trauma to trigger the onset of tinnitus. Therefore, no basis for linking current disability with service. Although the Veteran has contended he has had tinnitus since service, he acknowledged to the undersigned at his hearing that his memory is not particularly reliable. Given the absence of any tinnitus complaints in service or for many years after service, in the context of existing records showing other medical complaints, together with the Veteran's acknowledged poor memory, the Board does not consider the contention of having tinnitus since service to be credible. Thus, the greater weight of the evidence is against the claim. 4. Colon Cancer The Veteran contends that his colon cancer was the result of military service, to include a secondary relationship to his service-connected hemorrhoids and the surgeries received to treat them during military service. A review of the Veteran's service treatment records shows no complaints or treatment related to colon cancer. Post-service outpatient treatment records show that he was diagnosed with colon cancer in December 2014. These contain no discussion of etiology. A letter dated in December 2015, from the Veteran's gastroenterologist, linked the Veteran's hemorrhoids and rectal bleeding with the Veteran's military service, (for which the Veteran is service connected), but he stopped short of any opinion regarding the colon cancer. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that while the Veteran has a current diagnosis of colon cancer, the preponderance of the evidence weighs against finding that it began during service or is otherwise related to an in-service injury or disease, to include hemorrhoids. Treatment records show the Veteran was not diagnosed to have colon cancer until several years after his separation from service. While the Veteran is competent to report having experienced symptoms he believes were due to colon cancer since service, including his in-service hemorrhoid surgeries, he is not competent to provide a diagnosis in this case or determine that any symptoms he recalls were manifestations of his cancer. The issue is medically complex, as it requires knowledge/interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377, 1377 n.4. As there is no probative evidence that links the Veteran's colon cancer to service, or that indicates any service connected disability caused or aggravated his colon cancer, the greater weight of the evidence is against the claim. Accordingly, service connection is not warranted. 5. Acquired Psychiatric Disorder The Veteran contends that his acquired psychiatric disorder was the result of military service. In this regard, the Veteran has claimed that he experienced stressors during his naval service that led to the onset of his disability. A review of the Veteran's service treatment records does not reflect any complaints or treatment related to any acquired psychiatric disorder. A review of the Veteran's post-service outpatient treatment records shows that he has been variously treated for complaints of depression and anxiety. The Veteran was screened positive for depression in March 2015 and in May 2015 this was attributed to treatment for his colon cancer. In addition, consideration was given to whether PTSD could account for the Veteran's psychiatric symptoms. However, he was examined for VA purposes in connection with this claim in August 2015, where the examiner found the Veteran did not meet the criteria for PTSD, but rather, he had a depressive disorder. As stressors may only serve as a basis for establishing service connection for PTSD, in the absence of a PTSD diagnosis, the occurrence of any claimed stressor no longer has significance in terms of the claim's adjudication. Furthermore, no probative record relates the Veteran's depression or anxiety to any in-service injury or disease. (Continued on the next page) Although the Veteran contends his psychiatric disorder is related to service, he is not shown to possess any medical expertise as necessary to offer a probative opinion on that subject. Since the evidence fails to show the presence of any psychiatric disability during service, or for many years after, and no probative evidence links any current psychiatric disability to an in-service disease or injury, the greater weight of the evidence is against the claim, and the appeal in this regard is denied. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.