Citation Nr: 1332740 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-28 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from May 1969 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2012, the Veteran appeared before the undersigned Veterans Law Judge and gave testimony in support of his claim. A complete transcript is of record. In July 2012, the Board remanded this claim for additional development. The case has been returned to the Board and is ready for further review. 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 Reason for remand: to obtain addendum opinions. Left Ear Hearing Loss The Veteran was examined by VA in August 2012 for hearing loss. The examiner opined that the Veteran's left ear hearing loss was not as least as likely as not caused by service. The examiner stated that based on a review of the claims file the hearing was at normal limits at the time of enlistment and separation and that therefore the current hearing loss is not caused by or the result of an event and/or MOS in service. As was pointed out in the Board's prior remand, the absence of in-service evidence of a hearing disability during service is not always fatal to a claim. See, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Additionally the Board specifically noted this in its July 2012 remand, and instructed the examiner to respond to specific questions regarding the left ear hearing loss. The examiner failed to do so. The examiner was specifically advised that that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. The examiner was to discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how it develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure in service as opposed to some other cause. A clear rationale was to be provided. A remand of this claim is necessary to ensure compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Sleep Apnea The Veteran was examined by VA in August 2012 for his claim for service connection for sleep apnea. The examiner stated that the condition was less likely than not incurred in or caused by service. The examiner stated that it would be mere speculation to relate the current sleep apnea with active duty complaint of sleep problems. No rationale or further discussion was provided. In reviewing a similar factual scenario wherein VA examiners conveyed that they could not advance an opinion without resort to "mere speculation," the United States Court of Appeals for Veterans Claims (Court) has recently directed that: In general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. As the Secretary has acknowledged, this requirement inheres in the statutory equipoise rule as interpreted by the implementing regulation. See 38 U.S.C. §§ 5107(b); 38 C.F.R. § 3.102 ("When, after careful consideration of all procurable and assembled data, a reasonable doubt arises ... such doubt will be resolved in favor of the claimant."). An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. However, a bald statement that it would be speculative for the examiner to render an opinion as to etiology or diagnosis is fraught with ambiguity. See Daves v. Nicholson, 21 Vet. App. 46 (2007). Thus, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Furthermore, the Secretary must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves, supra. When the record leaves this issue in doubt, it is the Board's duty to remand for further development. The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Jones v. Shinseki, 23 Vet. App. 382, 393-94 (2010). It is not evident from the record that the examiner's use of the phrase "without resort to mere speculation" in the instant appeal reflected "the limitations of knowledge in the medical community at large and not those of a particular examiner." The Board finds this examiner's equivocal or inconclusive opinion amounts to nonevidence, neither for nor against the Veteran's claim because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); 38 C.F.R. § 3.102 (2013) (reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). While the examiner stated that PTSD is more likely the cause of insomnia, which the Board points out is a symptom, the examiner failed to offer any opinion regarding whether the specific condition of sleep apnea is due to or aggravated by service-connected PTSD. The Board's July 2012 remand mandated that the examiner should opine as to whether it is at least as likely as not that the Veteran's current sleep apnea had its onset in service or otherwise is causally or etiologically related to a disease or injury incurred in active service, to include his complaint of inability to sleep on the May 1971 separation examination. Further the Board stated that if the examiner determines that sleep apnea is not related to active military service, the examiner was to provide an opinion as to whether it is at least as likely as not that the Veteran's current sleep apnea is proximately due to or aggravated by his service-connected PTSD or PTSD medications, specifically to include Prazosin and Temazepam. A remand of this claim is necessary to ensure compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Refer the file to the August 2012 VA hearing examiner for an addendum opinion. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). It should be noted that military noise exposure is conceded in this case. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner should state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's left ear hearing loss is the result of his military service, including military noise exposure. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) In providing this opinion, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure in service as opposed to some other cause. If the examiner determines that the opinion cannot be made without resort to speculation, the examiner must explain the reasons why this is so. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved must be included. 3. Refer the file to the August 2012 VA hearing examiner for an addendum opinion. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. Based on a review of the record, and with consideration of the Veteran's statements, the examiner should opine as to whether it is at least as likely as not that the Veteran's current sleep apnea had its onset in service or otherwise is causally or etiologically related to a disease or injury incurred in active service, to include his complaint of inability to sleep on the May 1971 separation examination. b. If the examiner determines that sleep apnea is not related to active military service, provide an opinion as to whether it is at least as likely as not that the Veteran's current sleep apnea is proximately due to or aggravated by his service-connected PTSD or PTSD medications, specifically to include Prazosin and Temazepam The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved must be included. In rendering the opinions, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to it being the result of some other factor or factors. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2013).