Citation Nr: A22010966 Decision Date: 06/13/22 Archive Date: 06/13/22 DOCKET NO. 200625-194490 DATE: June 13, 2022 ORDER Service connection for tinnitus is granted. REMANDED Service connection for obstructive sleep apnea (OSA), as secondary to service-connected disabilities, including posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), is remanded. Service connection for gastroesophageal reflux disease (GERD), as secondary to service-connected disabilities, including PTSD with MDD, is remanded. FINDING OF FACT The Veteran's tinnitus is related to in-service hazardous noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1981 to January 2002. The rating decision on appeal was issued in June 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Board finds the service-connection claims for tinnitus, OSA and GERD have remained pending, so the Board considers these claims on the merits. 1. Service connection for tinnitus is granted Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for chronic disabilities, including tinnitus, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (a). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases, such as tinnitus. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The AOJ's June 2020 rating decision on appeal made a favorable finding that the Veteran had a current tinnitus disability. The Veteran describes attributes her current tinnitus to military noise exposure from 20 years of military service that required her to spend countless times on the range training and firing her weapon and throwing. See March 2020 Veteran's statement. Prior to the rating decision on appeal, September 2015 and December 2019 VA examiner provided negative nexus opinions on the tinnitus claim, that were inadequate in relying upon an apparently inaccurate history of the Veteran's tinnitus only beginning post-service since 2010 and did not appear to concede in-service noise exposure. However, the Veteran's competent lay statements, discussed above, show tinnitus began during service and in the absence of any contravening findings, the Board accepts she likely suffered in-service noise exposure, given her many years of active duty service, including verified service in Kuwait during October 1990 to April 1991 (i.e., Operation Desert Shield/Storm). See DD Form 214. The Board herein finds both examinations incomplete and inadequate, and thus, not probative. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Tinnitus is a condition capable of lay observation, and the Veteran's reports of in-service occurrence are credible. Charles v. Principi, 16 Vet. App. 370 (2002). Tinnitus is considered an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-75 (2015). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has reported tinnitus occurring in service. The Veteran and her husband are competent to state that she has experienced tinnitus since service. Charles, 16 Vet. App. 370. Resolving doubt in the Veteran's favor, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Service connection for OSA, as secondary to service-connected disabilities, including PTSD with MDD, is remanded. 2. Service connection for GERD, as secondary to service-connected disabilities, including PTSD with MDD, is remanded. The Veteran contends that her OSA and GERD were due to service and aggravated by her service-connected PTSD with depression. See April 2020 Veteran's statement; see also February 2019 and December 2019 Veteran's statements. The Veteran submitted an October 2018 positive private medical opinion by a private treating psychologist, Dr. L.T., Ph.D., that indicates her service-connected PTSD/depression and migraines aggravates her OSA, as well as her GERD. The Veteran submitted an April 2020 positive private medical opinion by a licensed professional counselor, J.P., that supported the notion that her service-connected PTSD with depression contributed to and aggravated her sleep apnea and GERD. Dr. L.T. stated, "In my personal experience, it is in my professional opinion, as a highly skilled and qualified Licensed Mental Health Practitioner that the Veteran's diagnosed conditions of PTSD, depression and migraines, does aggravate and exacerbates her obstructive sleep apnea and are at least likely as not (50/50 probability) proximately aggravated by her service related to depression and PTSD conditions, based on the Veteran's subjective information and consistent observational findings, according to the Diagnostic Statistical Manual for Mental Disorders, 5th edition (DSM-V) and Medical Doctor." [formatted for emphasis]. Dr. L.T. also opines on the GERD claim that "[The Veteran's] medical records also indicate that she suffers with GERD and hypertension that are also aggravated by her condition of migraine headaches, PTSD, and depression." [formatted for emphasis]. Similarly, J.P.'s opinion indicates that the Veteran's sleep apnea/GERD "...are at least as likely as not (50/50 probability) proximately aggravated by her depression, insomnia, and PTSD, based on the Veteran's subjective information and consistent observational findings, according to the available medical evidence and [DSM-V]." [formatted for emphasis]. In contrast, the January 2020 VA examiner offered negative medical opinions on the possibilities of direct and secondary service connection for OSA as due to and/or aggravated by service-connected PTSD with MDD. Similarly, the January 2020 VA examiner offered a negative medical opinion on the possibility of secondary service connection for GERD as due to and/or aggravated by service-connected PTSD with MDD. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Dr. L.T.'s opinion on sleep apnea offers language that seemingly conflates theories of direct service connection (i.e., "service related") and aggravation under a theory of secondary service connection ("proximately aggravated by...depression and PTSD conditions"). While J.P. generally references "medical records" and "available medical evidence" in her opinions, the reasoning fails to identify any particular supporting medical records for review. Additionally, the Board cannot discern the extent the Veteran's GERD and OSA are aggravated by her service-connected disabilities from Dr. L.T.'s and J.P.'s opinions. Thus, the Board finds these opinions to be inadequate. The January 2020 VA examiner's rationales for the negative opinions did not appear to consider the Veteran's competent lay statements nor the positive private medical opinion by J.P. Thus, the January 2020 VA examiner's opinions on OSA and GERD are likewise inadequate. Nieves, 21 Vet. App. at 304; Stefl, 21 Vet. App. at 124. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Given the pre-decisional duty-to-assist errors, the AOJ should obtain a medical opinion to consider the Veteran's competent lay statements and the positive medical opinion evidence. The Board acknowledges the Veteran filed a May 2020 VA Form 10182 for Direct Review to the Board similarly appealing a May 2020 AOJ rating decision that denied service connection for OSA and GERD. The Board accordingly remanded those claims in November 2021 for further development, including VA medical opinions on the etiology of these disabilities. The medical opinions responsive to the November 2021 remand were provided in February 2022, but are not properly before the Board for consideration in this appeal. While the Board recognizes that the development ordered herein may be cumulative to the development ordered by the Board in the Veteran's other appeal, the record on direct review of the June 2020 rating decision presented here requires the Board to remand the present claims for the AOJ to fulfill its duty-to-assist. The matters are REMANDED for the following action: Obtain a VA medical opinion by an appropriate clinician to determine the etiology of the Veteran's sleep apnea and GERD. The claims file should be made available to the clinician. Specifically, on review of the claims file, the examiner should opine as to the following: (a) Whether it is at least as likely as not that the Veteran's sleep apnea and GERD, respectively, is related to service. (b) Whether it is at least as likely as not that the Veteran's sleep apnea and GERD, respectively, was caused or aggravated by a service-connected disability, including PTSD with MDD. A complete rationale should be provided for all opinions rendered. Reconcile the positive private medical opinions, by Dr. L.T., Ph.D. in October 2018 and by J.P. in April 2020. Also reconcile any competent lay statements by the Veteran on the history of her sleep and GERD problems. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.