Citation Nr: 21041810 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-56 975 DATE: July 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a respiratory disorder is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for tremors, to include Parkinson's disease, is denied. REMANDED Entitlement to service connection for a mental disorder is remanded. FINDINGS OF FACT 1. Bilateral hearing loss is not related to service. 2. Tinnitus is not related to service. 3. A respiratory disorder is not related to service. 4. Sleep apnea is not related to service. 5. Tremors are not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for entitlement to service connection for tremors are not met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from March 1965 to February 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran requested a Board hearing, but withdrew the request in May 2021. SERVICE CONNECTION VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has established a presumption of exposure to herbicide agents applicable to veterans who served in the Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). A disease covered by 38 U.S.C. § 1116 becoming manifest as specified in that section in a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service. 38 U.S.C. § 1116(a). A veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(b); 38 U.S.C. § 1116A (those who served in the 12-nautical-mile territorial sea of the "Republic of Vietnam" are entitled to the presumption of herbicide exposure). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for tinnitus. Entitlement to service connection for a respiratory disorder. Entitlement to service connection for sleep apnea. Entitlement to service connection for tremors. Service treatment records reveal no complaint of, treatment for, or diagnosis of tremors, Parkinson's disease, a respiratory disorder, sleep apnea, hearing loss, or tinnitus. A report of medical examination performed on January 31, 1969 (service separation) reveals normal clinical examination of the throat, ears and hearing, and normal findings for the lungs and neurologic system (Record 10/27/2014 at 8). The Veteran separated from service on February 21, 1969. He filed his initial claim in August 2014, 45 years later. Private treatment records reveal current diagnoses of sleep apnea, COPD, and benign essential tremor. There is no medical opinion that relates these diagnoses to service. They are not diseases that are presumed to be associated with exposure to herbicide agents nor are they presumptive chronic diseases. See 38 C.F.R. § 3.309 (a), (e). While the Veteran is found to have a whole body tremor, the diagnosis is "essential" tremor (Record 02/12/2021 at 62). This is distinct from Parkinson's disease. An essential tremor is defined as "a hereditary tremor" that is "distinct from that of parkinsonism." See Dorland's Illustrated Medical Dictionary 1984 (31st ed. 2007). Therefore, the presumption of service connection for Parkinson's disease based on exposure to herbicide agents does not apply. As there was no injury or disease in service that may be related to sleep apnea, COPD, and/or essential tremor, a VA examination is not necessary to resolve these claims. See McLendon v. Nicholson, 20 Vet. App. 79 at 83 (2006). The Board has considered the Veteran's lay statements regarding etiology. However, relating post-service diagnoses of COPD, sleep apnea, and essential tremor to temporally remote events in service is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). The development of these conditions is medically complex and requires knowledge of interpretation of diagnostic medical testing. While certain symptoms of these disorders may be capable of lay observation, the normal clinical findings at service separation are persuasive evidence that the Veteran did not have sleep apnea, COPD, or essential tremors at service separation. Accordingly, the Veteran's lay statements are unpersuasive as to onset of the claimed disorders in service. To the extent symptoms developed after service, the Veteran's lay statements are not competent evidence of a nexus to service. The duty to assist requires securing a medical opinion when there is a current diagnosis of tinnitus and lay evidence of tinnitus during and after service. See Charles v. Principi, 16 Vet. App. 370 (2002). However, here, there is no current diagnosis of either tinnitus or hearing loss. Private treatment records in 2015 repeatedly note that the Veteran had no apparent difficulty hearing (Record 02/12/2021 at 102). They also note that he denied tinnitus in September 2020, during the course of the current claim (Record 02/12/2021 at 82). Therefore, the criteria for obtaining a medical examination and opinion are not met. See McLendon, 20 Vet. App. at 83. In sum, the Board finds that the claimed COPD, sleep apnea, essential tremors, hearing loss, and tinnitus are not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND Entitlement to service connection for a mental disorder. A VA Examination of the Veteran's mental health in April 2015 reveals that the Veteran's symptoms did not meet the diagnostic criteria for PTSD, and that the Veteran did not have any mental disorder. The examiner suspected, but did not diagnose, antisocial personality disorder (Record 04/20/2015). The Veteran submitted treatment records in 2021. These include a March 2016 diagnosis of PTSD based on an encounter on the USS Intrepid as it responded to the USS Forestall following an explosion (Record 02/12/2021 at 102). While the examiner's records state that he researched the incident on a website, as there was no diagnosis of PTSD at the time of the May 2015 decision, no official research with the service department was conducted. Moreover, the conflict in diagnoses indicates the need for reexamination. The matter is accordingly REMANDED for the following action: 1. Attempt to corroborate the Veteran's stressor(s) with the appropriate agency of the service department. 2. Schedule an appropriate VA examination by a VA psychiatrist or psychologist to determine the nature and etiology of his mental disorder or personality disorder. The relevant documents in the claims file should be made available to the VA examiner. All appropriate diagnoses should be rendered. If a diagnosis is appropriate other than a personality disorder, the VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the mental disorder is causally or etiologically related to the Veteran's active service, to include any verified stressor or to the Veteran's fear of hostile military or terrorist activity. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or worsening as it is to find against causation or worsening. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, the examiner is asked to please provide complete explanations stating why this is so. In so doing, the examiner is asked to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.