Citation Nr: 1332526 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-13 758A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas 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 Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to February 1976 with additional service in the Army National Guard from August 1977 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and February 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) Houston, Texas. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of the Veteran's representative's September 2013 Appellant's Brief. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). With respect to his hearing loss and tinnitus, the Veteran has asserted that such are related to his service as a member of a weapons squad in an infantry unit. Specifically, he alleges noise exposure from artillery, aircraft, tank, and gunfire. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was an infantryman. Therefore, the Board finds that such noise exposure is consistent with the circumstances of the Veteran's military service. 38 U.S.C.A. § 1154(a). The Veteran was afforded a VA audio examination in October 2008, at which time he was diagnosed with profound mixed hearing loss in the right ear and normal hearing in the left ear. However, private audiograms dated both prior and subsequent to the October 2008 VA examination indicate that the Veteran may have a hearing loss disability of the left ear for VA purposes pursuant to 38 C.F.R. § 3.385. See audiograms dated in November 2007, February 2008, April 2008, September 2009, and January 2010. At the time of the October 2008 VA examination, the evidentiary record did not contain any of the Veteran's service treatment records (STRs). As a result, the VA examiner opined that, without the Veteran's military audiometric information, it was impossible, without speculation, to determine the amount of hearing loss that resulted from his military acoustic trauma. The VA examiner, nonetheless, opined that the Veteran's tinnitus is less likely than not caused by acoustic trauma, given that his infrequent head noises are consistent with normal auditory function and not typical of etiology of noise exposure. Since the October 2008 VA examination, the Veteran has submitted copies of his STRs, including reports of medical examination which contain audiograms. In this regard, his February 1974 enlistment examination revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 - 25 LEFT 5 15 15 - 10 While the Veteran was discharged from active duty in February 1976, an undated service examination which appears to have been conducted in August 1977 based on the date the chest x-ray was obtained, revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 30 - 30 LEFT 20 20 30 - 20 Given that this evidence suggests that the Veteran's hearing acuity may have decreased during service, and because the October 2008 VA examiner did not have an opportunity to review this evidence, which is particularly relevant in this case, the Board finds that an additional examination is needed to address the current nature and etiology of his bilateral hearing loss and tinnitus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the central issue in determining the probative value of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). With respect to sleep apnea, review of the record shows the Veteran was diagnosed with sleep apnea in April 2010. The STRs do not contain any complaints, treatment, or findings related to sleep apnea, any other respiratory disability, sleep problems, or symptoms reasonably attributable to those conditions. Nevertheless, the Veteran has asserted that he experienced sleeping problems during service, as his sleep routine was impacted by irregular hours on guard duty and going days without decent sleep. He stated, however, that he did not seek treatment for his sleeping problems because that was not considered a reason to seek medical attention in a combat unit. See April 2011 Veteran statement. In support of his claim, the Veteran has also submitted lay statements from individuals who attest that they have witnessed the Veteran's sleep apnea symptoms, including choking and grasping for air. See lay statement from R.C.U. dated June 2010. Notably, the Veteran's mother has asserted that, when the Veteran returned from service in 1976, he manifested symptoms that he did not have before, including snoring and difficulty sleeping. She also asserted that she remembers the Veteran writing letters from Germany wherein he told her about his irregular hours of guard duty and going days without sleep and that he was not allowed to go to sick call for sleep problems because he was in a combat unit. See lay statement from M.M. dated June 2010. In light of the current diagnosis of sleep apnea as well as the lay statements of record detailing the Veteran's in-service and post-service symptomatology, the Board finds that a remand is necessary in order to afford him a VA examination so as to determine the current nature and etiology of his sleep apnea. Additionally, while on remand, the Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for bilateral hearing loss, tinnitus, and/or sleep apnea. After securing any necessary authorization from him, all identified treatment records should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider treated him for his bilateral hearing loss, tinnitus, and/or sleep apnea. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The claims file must be made available to the examiner for review and the report should reflect that such review was conducted. The examiner should conduct all necessary testing. (A) The examiner should indicate whether the Veteran has bilateral hearing loss and tinnitus. (B) After reviewing the evidence of record, including specifically the reports of medical examination and audiograms conducted in February 1974 and August 1977, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran's current hearing loss and tinnitus were incurred or is otherwise the result of his military service, to include his in-service noise exposure. An opinion must be provided with respect to both hearing loss and tinnitus. A rationale must be provided for each opinion provided. 3. After obtaining all outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. The claims file must be made available to the examiner for review and the report should reflect that such review was conducted. The examiner should conduct all necessary testing. (A) The examiner should indicate whether the Veteran has sleep apnea. (B) After reviewing all lay and medical evidence of record, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran currently has sleep apnea that was incurred or is otherwise the result of his military service, to include his allegations that his sleep routine was impacted by irregular hours on guard duty and going days without decent sleep. In offering such an opinion, the examiner should consider the lay statements of record detailing the Veteran's symptomatology during and since service. A rationale must be provided for any opinion offered. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).