Citation Nr: 1603167 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 12-11 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to May 1981, February 2002 to July 2002, and May 2007 to June 2007, with additional periods of service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Veteran presented testimony at a video conference hearing before a Veterans Law Judge. Unfortunately, due to an equipment malfunction in the audio recording, it was not possible to create a written transcript of that hearing. The Veteran requested a new video conference hearing, 38 C.F.R. § 20.717, which took place in September 2015. A transcript of this hearing has been associated with the Veteran's claims file. At the hearing, the record was held open 90 days to afford the Veteran additional time to submit relevant evidence. No evidence was submitted in the time allotted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran claims entitlement to tinnitus and sleep apnea. Active duty records do not indicate either condition. In February 2010, the Veteran underwent VA examinations in connection with these claims. The audiological examiner noted normal hearing on tests through 2008, but also noted that active duty records indicated exposure to excessive noise. Hearing protection was issued. The service records also indicated that the Veteran marked "no" on each medical history questionnaire with respect to the question of tinnitus. The Veteran was indicated to have tinnitus on examination, but the examiner noted that this was reported to have started a couple of years prior to the examination. Onset was not associated with a specific event. Upon examination, no hearing loss was found and, because the Veteran consistently marked "no" to the question of tinnitus on his hearing conservation questionnaires and his post-deployment questionnaires, including as recently as 2008 (his last month of active duty was in 2007), the examiner found that it appeared that the onset of tinnitus was more recent than his last questionnaire in 2008. As such, the examiner found that the time of onset would be remote from his last month of active duty in 2007, and even more remote from his other periods of active duty. It was therefore found that it was less than 50% likely that tinnitus could be attributed to active duty time in the Air Force. The sleep examiner noted that obstructive sleep apnea was diagnosed by sleep studies on December 12, 2007. The veteran stated that he had difficulty breathing prior to the diagnosis. He reported that he used to have disturbed sleep and was not refreshed in the mornings and could not function well during the day due to tiredness. This was noted to have continued since 2006 until he started using a continuous positive airway pressure (CPAP) machine. The Veteran was diagnosed with moderate obstructive sleep apnea. No opinion regarding nexus to active service was offered. Since the examinations, the Veteran testified before the Board in September 2015. He reported ringing in his ears for a long time, well before 2002. He reported lots of excessive noise exposure during his periods of active duty for 8 hours each day. He stated that he did not wear hearing protection, even though it was issued, as such was not enforced. He stated that he marked "no" on his medical questionnaires because indicating hearing or other health problems would jeopardize his duty status and he wanted to keep his job. In this regard, the Board notes that the Veteran eventually felt that he had to get tested for his sleep issues since it was becoming a big problem and he felt that he needed treatment. As a result of the diagnosis, he was medically discharged from Air National Guard. In June 2014, the Veteran also submitted the statements of fellow servicemen that indicated that enforcement of hearing protection was not particularly good and that many members, in fear of being removed, from their work centers, or being denied a deployment opportunity, or being placed on a non-retention list, would state "no" to many questions that should have been answered "yes." With regard, to sleep apnea, the Veteran testified he first noticed his symptoms during a deployment to Turkey in 2002. The Veteran submitted a June 2014 lay statement from a fellow serviceman that was deployed with him, in support of his claim. The statement indicated that, on the plane ride over, the Veteran was asleep on the floor when he abruptly sat up and gasped for air. It was as if he quit breathing. The Veteran explained that he thought it was due to the long flight and being a little nervous about the upcoming mission. During the stay in Turkey, it was noted that the Veteran seemed to always be tired. The fellow serviceman indicated that he understood why the Veteran waited so long to have a doctor officially test him, since a diagnosis of Sleep Apnea would end his career. Additionally, the Veteran submitted a statement from his wife in April 2010 in which she stated that the Veteran's sleeping problems started approximately 9 to 10 years prior to her statement. Finally, the Veteran submitted a statement from Dr. Rull, the physician treating his sleep apnea, dated April 14, 2010, in which the doctor stated that, although the Veteran's sleep apnea was not diagnosed until October 2007, is was highly likely that the Veteran had sleep apnea for an extensive period of time preceding the establishment of care in September 2007. Based on the foregoing, the Board finds that this matter must be remanded for additional opinion. The examiner is requested to offer an opinion on whether the Veteran's diagnosed tinnitus and sleep apnea was caused or aggravated by one or more of the Veteran's periods of active duty service from November 1980 to May 1981, February 2002 to July 2002, and May 2007 to June 2007. The examiner is specifically requested to comment on the Veteran's testimony before the Board regarding onset of his symptoms, as well as the April 2010 report of Dr. Rull, the April 2010 statement of the Veteran's spouse, and the June 2014 statements from the Veteran's fellow servicemen. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Upon remand, the Veteran should be afforded an additional opportunity to submit relevant medical evidence. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disabilities. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. Arrange for an appropriate VA opinion regarding whether the Veteran's diagnosed tinnitus and sleep apnea were caused or aggravated by periods of active duty service from November 1980 to May 1981, February 2002 to July 2002, and May 2007 to June 2007. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner is specifically requested to comment on the Veteran's testimony before the Board regarding onset of his symptoms, as well as the April 2010 report of Dr. Rull, the April 2010 statement of the Veteran's spouse, and the June 2014 statements from the Veteran's fellow servicemen. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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 2014). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).