Citation Nr: 1325509 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 10-03 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to October 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2009 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In August 2012, the Board remanded the issues of bilateral hearing loss and tinnitus to the RO for additional evidentiary development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he has bilateral hearing loss, tinnitus and sleep apnea as a result of injuries incurred during service. A remand is necessary for further evidentiary development. In June 2009, the Veteran was provided with a VA audiological examination. The examiner found the Veteran's speech recognition thresholds and puretone averages were not in agreement. The examiner, Dr. M. R. A, did not report hearing thresholds or speech recognition scores as testing showed a non-organic hearing loss. However, Dr. M. R. A. opined that although the hearing test results were not adequate for rating purposes, any hearing loss or tinnitus the Veteran had was not caused by acoustic trauma during service. The rationale provided was that the Veteran's hearing was normal upon separation and there was no documentation of tinnitus in the service treatment records (STRs). The Veteran claimed that the equipment used during the June 2009 examination was not reliable and requested a new VA audiological examination. Pursuant to the Board's August 2012 remand, the Veteran was afforded a second VA audiological examination. A November 2012 VA audiological examination was conducted by the same examiner who conducted the Veteran's June 2009 VA audiological examination. Upon testing of puretone thresholds, all frequencies could not be tested, except for 1000 Hz in the left ear, which showed puretone thresholds at 105+. Dr. M. R. A. again found the test results not valid for rating purposes as the Veteran's admitted speech recognition thresholds were not agreement with his puretone averages. The diagnosis was normal hearing bilaterally. Despite the invalidity of the testing results and the finding that the Veteran's hearing was normal, Dr. M. R. A. opined that any non-organic hearing loss experienced by the Veteran was not related to service. She referenced the rationale provided in the June 2009 examination and stated there is no scientific basis for concluding delayed onset hearing loss exists. A January 2013 addendum opinion was provided; however, it did not address the Veteran's lay statements regarding continuity of hearing loss and tinnitus since service, the Veteran's July 1963 audiogram showing upward threshold shifts nor the Veteran's September 1966 STR showing a bilateral ear irrigation. Additionally, Dr. M. R. A. did not consider VA regulation that holds the absence of evidence of hearing loss in service is not a bar to an award of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Thus, it is necessary to obtain a new VA audiological examination, preferably from a different examiner. Prior to rendering an opinion, the VA examiner should consider VA's prior concession that the Veteran was exposed to acoustic trauma in-service, the Veteran's July 1963 audiogram showing upward shifts in his hearing thresholds, the September 1966 STR showing the Veteran underwent a bilateral ear irrigation, and the Veteran's lay statements that he has experienced hearing loss and tinnitus since service. Additionally, the examiner should address the private medical opinions obtained from., a hearing instrument specialist in March 2009, Dr. D. R. F. in March 2009 and Dr. S. M. H. in October 2010, which all find that the Veteran's hearing loss and tinnitus are related to service. The report from T. C. B. is in graphic form only and does not specify the type of testing conducted. Clarification of that record should be obtained on remand. Savage v. Shinseki, 24 Vet. App. 259 (2011). The Veteran is also claiming service connection for sleep apnea. The Veteran claims that during service he began to have issues sleeping. Specifically, the Veteran states that other servicemen would wake him up at night due to his snoring and apparent lack of breathing. See Veteran's Statement in Support of Claim, June 2011. The Veteran also claims that as a result of his sleep apnea, he missed duty on two occasions, both of which are recorded in his personnel record. See Veteran's Statement in Support of Claim, May 2012. The Veteran's personnel record only shows the Veteran missing duty in September 1964 and January 1966 and does not provide a reason as to why the Veteran missed duty. Additionally, April 2011 medical records from Dr. D. R. F., show the Veteran considered his in-service exposure to the chemical naphtha as a possible cause for incurrence of his sleep apnea. Given the Veteran's current diagnosis of sleep apnea and his claim that the condition began in-service, a medical opinion should be obtained. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all medical care providers who have treated him for hearing loss, tinnitus and sleep apnea since service. After securing the necessary release(s), obtain these records, including updated treatment records from the Fond Du Lac Regional Clinic since January 2013. A response, negative or positive, should be associated with the claims file. 2. Determine whether T. C. B., a hearing instrument specialist with Hearing Health Care Centers in Fond du Lac, Wisconsin, is a state-licensed audiologist and if the controlled speech discrimination test used during the Veteran's January 30, 2009, examination at Hearing Health Care Centers was the Maryland CNC test. 3. After completion of the foregoing, schedule the Veteran for a VA audiological examination, preferably with a different examiner than the one who conducted the June 2009 and November 2012 examinations, to determine the current nature and likely etiology of any current hearing loss and tinnitus. The claims file, to include a copy of this Remand, must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. Based on the examination and review of the record, the examiner is requested to provide the following information: It is at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed hearing loss is etiologically related to the Veteran's active military service? It is at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed tinnitus is etiologically related to the Veteran's active military service? The VA examiner is requested to provide a thorough rationale for all opinions provided. In providing the opinions, the examiner should address the significance of the Veteran's eighteen month service as a mechanic in a ship engine room, the VA's prior concession that the Veteran was exposed to acoustic trauma in-service, the July 1963 audiogram showing upward shifts in the Veteran's hearing thresholds, the September 1966 STR showing the Veteran underwent a bilateral ear irrigation, and the Veteran's lay statements that he has experienced hearing loss and tinnitus since service. Additionally, the examiner should address the private medical opinions from T. C. B., a hearing instrument specialist in March 2009, Dr. D. R. F. in March 2009 and Dr. S. M. H. in October 2010, finding that the Veteran's hearing loss and tinnitus are related to service. If the examiner opines that the Veteran's hearing loss is non-organic, please explain if the non-organic hearing loss is related to service. The examiner is reminded that lack of a diagnosis of hearing loss or tinnitus in the Veteran's STRs is not fatal to these claims. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed condition. 4. After completion of the foregoing, schedule the Veteran for a VA examination to determine the current nature and likely etiology of any current sleep apnea. The claims file, to include a copy of this Remand, must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. Based on the examination and review of the record, the examiner is requested to provide the following information: It is at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed sleep apnea is etiologically related to the Veteran's active military service? The VA examiner is requested to provide a thorough rationale for all opinions provided. In providing the opinion, the examiner should address the significance of the Veteran's lay statements that during service he would be woken up by fellow service members due to snoring and not breathing, he did not sleep well at night during service and slept through service in September 1964 and again in January 1966, and the Veteran's lay statements that he cleaned things during service with naphtha. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed condition. 5. After completion of the above, readjudicate the issues on appeal. If any benefits remain denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ M. E. LARKIN 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) (2012).