Citation Nr: 1118719 Decision Date: 05/16/11 Archive Date: 05/26/11 DOCKET NO. 09-27 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2003 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). This decision, in pertinent part, denied service connection for sleep apnea and bilateral hearing loss. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Courts are applicable to this appeal. Regarding his claim for service connection for a hearing loss, in April 2008 the RO scheduled aVA audiology examination to determine the nature and etiology of the Veteran's claimed bilateral hearing loss. The Veteran failed to report to the examination without good cause. Pursuant to 38 C.F.R. § 3.655, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination, and a claimant, without good cause, fails to report for such examination, or reexamination, the following action shall be taken: When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (2010). However, the Board notes that during the course of this appeal, on September 2, 2010, the Department of Veterans' Affairs, Veterans Benefits Administration issued Fast Letter 10-35. The subject was: Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. That letter, introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. The Fast Letter indicated that when a claim for hearing loss and/or tinnitus is received, the decision maker must review the claim for: Sufficient evidence of a current disability (including lay evidence); and evidence of hearing loss and/or tinnitus in service; or records documenting an event, injury, disease, or symptoms of a disease potentially related to an audiological disability. If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. In such cases, where there is sufficient evidence of a current disability and the in-service exposure to hazardous noise is conceded based on the Duty MOS Noise Exposure Listing, VA is obligated to request a VA examination and opinion to determine if there is a medical nexus. The level of probability of exposure conceded, such as "Highly Probable" or "Moderate," should be included in the information provided to the examiner in the body of the examination request. Finally, it was noted that the Duty MOS Noise Exposure Listing is not an exclusive means of establishing a Veteran's in-service noise exposure. Claims for service connection of hearing loss must be evaluated in light of all evidence of record in each case, including treatment records and examination results. In the present case, the evidence reflects that the Veteran was a Marine military policeman. According to the Duty MOS Noise Exposure Listing, it is "Moderately Probable" that the Veteran experienced exposure to hazardous noise. Further, service treatment records include an audiogram dated December 2003 which noted routine noise exposure and post-deployment health assessments dated May 2005 and January 2007 which included Veteran reports of occasional exposure to loud noises. Here, the Board notes the seemingly redundant nature of this remand due to the fact that Veteran failed to report to a previously scheduled VA audio examination; but the September 2, 2010 Fast Letter 10-35 specifically directs that if the duty position is shown to have "Highly Probable" or "Moderate" probability of exposure to hazardous noise, as is the case here with a "Moderate" probability of exposure to hazardous noise as a military policeman, then exposure to such noise is conceded for purposes of establishing the in-service event. The appeal must therefore be remanded for another VA audiology examination and opinion that takes into account the "Moderate" probability of noise exposure conceded. However, the Veteran must decide that it is in his better interest to attend the scheduled examination or accept any consequences of his failure to attend the examination. Concerning his claim for service connection for sleep apnea, service treatment records (STRs) are silent for any complaints, findings, or treatment of sleep apnea. In post-deployment examinations dated in June 2005 and January 2007, the Veteran denied feeling tired after sleeping. In a November 2007 report of medical history, the month before discharge from service, the Veteran denied frequent trouble sleeping. Post-service treatment records were silent for any complaints, findings, or treatment of sleep apnea. In his March 2008 claim, the Veteran reported that he never had a problem sleeping until November 2004, and now he always had problems sleeping. He indicated that he woke in the middle of the night "gasping for air." He stated he was told by a family member that he stopped breathing several times during the night. In an April 2008 statement, the Veteran reported he was told that it sounded like he had sleep apnea, but he was never seen for treatment. In another April 2008 statement, the Veteran stated he developed sleep apnea while on active duty. He believed it was due to "stressful situations during deployment, as well as lack of sleep during training." He reiterated that he was never diagnosed with sleep apnea by a physician, but he reported several doctors in the military told him it sounded like he had sleep apnea. The Veteran was scheduled for a sleep apnea assessment in May 2008. He contacted VA and requested that the testing be rescheduled. It was scheduled for a day in June 2008, and he failed to report for scheduled VA examination to determine the nature and etiology of his claimed sleep apnea. In an April 2009 notice of disagreement, the Veteran argued that he should not have been denied service connection for sleep apnea because he was never "checked out" for it. He alleged that he was unable to attend the scheduled examination because he was unable to take time off from work. The Board acknowledges that during these lean economic times, employment situations must be considered, and the Board is agreeable to providing the Veteran one more opportunity for sleep apnea testing; however, the Veteran must decide that it is in his better interest to attend the scheduled examination or accept any consequences of his failure to attend the examination. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA that treated the Veteran for hearing loss or sleep apnea since service. After the Veteran has signed the appropriate releases, those records not already associated with the file should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The Veteran should be afforded a VA audio examination to determine the etiology of the claimed bilateral hearing loss. All indicated tests and studies are to be performed, and a comprehensive social and occupational history is to be obtained. Prior to the examination, the claims folder and a copy of this remand must be made available to the audiologist for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examination must be conducted following the protocol in VA's Disability Worksheet for VA Audio revised on February 17, 2010. In this case, exposure to hazardous noise in service is moderately probable, and is conceded. During the interview process, the examiner is to obtain from the Veteran an occupational history, to include job descriptions for any positions held prior to or following service, as well as a history of any recreational noise trauma to which the Veteran may have been exposed, both before and after service. Following the examination, and having reviewed the evidence of record, and considering the Veteran's in-service and post-service hazardous noise exposure, the audiologist is requested to opine whether it is at least as likely as not (50 percent or greater) that any current bilateral hearing loss is due to hazardous noise exposure in service. In providing this opinion, the audiologist is requested to comment on the Veteran's pre-service and post-service occupational and recreational history of noise exposure. Sustainable reasons and bases are to be provided with this opinion. 3. The Veteran should be afforded a VA sleep apnea (Sleep Studies) examination to determine the etiology of his claimed sleep apnea. All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history are to be obtained. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Following the examination, the examiner is to indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a sleep apnea disorder that is related to his period of military service. Sustainable reasons and bases are to be provided for any opinion rendered. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. VA will notify the appellant if further action is required on his or her part. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).