Citation Nr: 1642440 Decision Date: 11/03/16 Archive Date: 11/18/16 DOCKET NO. 12-29 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for insomnia, to include as secondary to service-connected tinnitus. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for an ear disability, claimed as ear infections and ear drainage. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1984. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. The Veteran was scheduled to appear before a member of the Board at a videoconference hearing in December 2015. The evidentiary record contains a letter sent to the Veteran's address of record in November 2015, noting the date, place, and time of the hearing. The Veteran did not report for the December 2015 videoconference hearing. Therefore, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d) (2016). These matters were remanded by the Board in February 2016 for further development. The issue of entitlement to service connection for chronic sinus problems has been raised by the record in a December 2014 Veteran statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND In a May 2016 addendum opinion to an April 2016 VA mental disorders examination, the VA examiner opined that the Veteran's sleep difficulties are noted as a symptom of his diagnosis of unspecified depressive disorder, and that there was not a separate diagnosis of insomnia. The examiner opined, "The Veteran does not report depressive/sleep problems in the context or due to a sense of loss or limitations imposed by his service[-]connected tinnitus. Thus, it is this writer's opinion that the Veteran's sleep problems, within his diagnosis of Unspecified Depressive Disorder, [are] less likely than not caused by or aggravated by his service connected tinnitus." However, the evidentiary record indicates that as early as December 2003, the Veteran complained that the ringing in his ears made it hard for him to sleep. See December 2003 VA examination report. In his August 2009 claim, the Veteran reported he had to sleep with the television on to drown out the humming in his head. Lay statements from the Veteran's family members dated in 2009 reported the Veteran had to sleep with a fan on or the television on loudly since he returned home from service, which the Veteran said was due to the ringing in his head. See, e.g., September 2009 Veteran's father's statement; August 2009 Veteran's sister's statement; August 2009 Veteran's aunt's statement; August 2009 Veteran's wife's statement. Upon VA examination in June 2010, the Veteran again reported that he had to sleep with the television on to drown out his tinnitus, and that he did not sleep soundly. The evidence of record indicates depression was not diagnosed until October 2011, and at that time the Veteran reported feeling depressed within the last year. See October 2011 VA mental health triage note. Further, the Veteran's VA primary care physician has diagnosed insomnia as a separate disorder. See January 2014 VA primary care note; August 2012 VA primary care note. Because the April and May 2016 VA mental disorders examiner did not address the separate diagnoses of insomnia of record, or the Veteran's complaints of trouble sleeping relating to his service-connected tinnitus prior to the diagnosis of a depressive disorder, the Board finds the April 2016 VA examination opinion and the May 2016 addendum opinion inadequate. On remand, the AOJ should obtain a medical opinion to determine the nature and etiology of the Veteran's insomnia, to include any relationship to his service-connected tinnitus. In the February 2016 remand, the Board instructed the AOJ to afford the Veteran VA examinations to determine the nature and etiology of his claimed sleep disorders, to include insomnia and sleep apnea, as well as his claimed ear disability, other than hearing loss and tinnitus. The evidence of record indicates the Veteran failed to report for his scheduled VA examinations in May 2016. However, the record does not include any letters notifying the Veteran of the scheduled examinations. On remand, the AOJ should undertake appropriate efforts to afford the Veteran VA examinations to determine the nature and etiology of his claimed sleep disorders, to include sleep apnea, and ear disability. On remand, the AOJ should also obtain any updated VA treatment records. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain any outstanding VA treatment records, to include from the Houston VA Medical Center dated from May 2016 to the present. All obtained records should be associated with the evidentiary record. 2. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of his insomnia and sleep apnea. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: a) The examiner should identify with specificity any sleep disabilities that are currently manifested, or that have been manifested at any time since August 2009. The examiner should specifically address the diagnoses of insomnia and obstructive sleep apnea in the Veteran's VA treatment records. b) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current sleep apnea was either incurred in, or is otherwise related to, the Veteran's active duty service? The examiner should consider the August 2009 statement from the Veteran's wife concerning his sleep habits following his separation from active duty service. c) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current insomnia was either incurred in, or is otherwise related to, the Veteran's active duty service? The examiner should address the Veteran's statements that while serving in Japan his sleep was always interrupted as he would be called to duty for incidents on the flight line. See December 2015 Veteran statement. d) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current insomnia was caused by the Veteran's service-connected tinnitus? The examiner should specifically address the Veteran's statements, beginning as early as 2003, that the ringing in his ears makes it hard for him to sleep. The examiner should also specifically address the lay statements from the Veteran and his family members that he has had to sleep with a fan or the television on loudly in order to drown out the ringing in his head. The examiner should specifically consider the evidence of record indicating the Veteran's complaints of sleep problems related to his tinnitus prior to his complaints and diagnosis of depression in October 2011. e) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current insomnia is aggravated by the Veteran's service-connected tinnitus? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The complete rationale for all opinions should be set forth. 3. After #1 has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of his ear disability, to include ear infections and ear drainage. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should elicit a full history from the Veteran. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: a) The examiner should identify with specificity any ear disability, other than hearing loss and tinnitus, that is currently manifested, or that has been manifested at any time since August 2009. The examiner should address the Veteran's contentions that he has experienced chronic ear infections and ear drainage. The examiner should also address the medical and lay evidence of record regarding wax build up in the Veteran's ears, and that he would frequently need to pop or irrigate his ears. b) For each disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current ear disability was either incurred in, or is otherwise related to, the Veteran's active duty service? The examiner should specifically address the Veteran's contentions that he has had chronic ear infections and drainage problems, as well needing to get his ears flushed, since his separation from active duty service. The examiner should also address the lay statements of record that following his active duty service, the Veteran would constantly pop his ears, that the Veteran complained it sounded like he was under water, and that he has suddenly fallen on several occasions. The complete rationale for all opinions should be set forth. 4. If the Veteran fails to report to either scheduled examination, the AOJ must obtain and associate with the evidentiary record a copy of any notice of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters 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 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). _________________________________________________ MICHAEL LANE 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).