Citation Nr: 1802183 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-04 339 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased (compensable) disability rating (or evaluation) for bilateral hearing loss. 2. Entitlement to service connection for sleep apnea, including as due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Blowers, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1982 to December 1993. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the RO in Nashville, Tennessee, which denied both service connection for sleep apnea and an increased disability rating for the service-connected bilateral hearing loss. The Veteran testified from Indianapolis, Indiana, at an October 2017 Board videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Rating for Bilateral Hearing Loss A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran last received a VA audiometric examination in October 2012. At the October 2017 Travel Board hearing, the Veteran testified to having hearing aids adjusted every six months by a VA medical center (VAMC). Per the Veteran, during each visit the hearing aids were turned up due to worsening hearing loss. The Board notes that at the October 2017 hearing the Veteran testified to receiving an audiometric examination at each hearing aid adjustment; however, review of the Veteran's VA medical records shows this to be incorrect. In fact, per a June 2017 VA audiological treatment note, the Veteran's last audiometric examination was in 2012, and the Veteran was advised to obtain a new VA audiometric examination, which was not performed at that time. For the above reasons, the Board finds remand for a new VA audiometric examination to be warranted. Service Connection for Obstructive Sleep Apnea VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Veteran has not received a VA examination regarding the claimed sleep apnea. Review of the record reflects that the Veteran was diagnosed with sleep apnea on or about 2006. Throughout the course of this appeal, the Veteran has advanced multiple theories as to the cause of the sleep apnea. First, the Veteran has conveyed having multiple sleep disorder symptoms during service, to include snoring, restlessness, and frequent waking, which the Veteran believes were actually symptoms of sleep apnea. Second, the Veteran has contended that the currently diagnosed sleep apnea was caused or aggravated by one or more service-connected disabilities, to include posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI). Further, the Veteran has advanced that pain symptoms stemming from the other service-connected disabilities may have also caused or aggravated the sleep apnea. Medical opinions on these questions would be helpful. For these reasons, the Board finds remand for a VA sleep apnea examination to be warranted. Outstanding Treatment Records VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the AOJ should request that the Veteran provide any relevant outstanding private treatment records not already associated with the record. Further, the AOJ should obtain any outstanding VA treatment records for the period from September 2017. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the bilateral hearing loss and sleep apnea. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the bilateral hearing loss and sleep apnea, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record all VA treatment records pertaining to the treatment of the bilateral hearing loss and sleep apnea, not already of record, for the period from September 2017. 3. Schedule the appropriate VA examinations. The relevant documents in the record should be made available to the examiners, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. Bilateral Hearing Loss The VA examiner should report the extent of hearing loss in accordance with VA rating criteria. The VA examiner should also describe the functional effects caused by the hearing loss. This includes the functional effect on both the Veteran's daily and occupational life. Sleep Apnea The examiners should provide the following opinions: A) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed sleep apnea had its onset during a period of active service? In rendering this opinion, the VA examiner should address whether the Veteran's advanced in-service symptoms of snoring, restlessness, and frequent waking (or any other symptoms noted by the Veteran at the examination) were symptoms of sleep apnea. B) Is it at least as likely as not (50 percent or higher degree of probability) that the service-connected PTSD, TBI, and/or symptoms of pain related to one or more service-connected disabilities caused the currently diagnosed sleep apnea? C) Is it at least as likely as not (50 percent or higher degree of probability) that the service-connected PTSD, TBI, and/or symptoms of pain related to one or more service-connected disabilities aggravated (that is, worsened in severity) the currently diagnosed sleep apnea? 4. Then, readjudicate the issues of rating bilateral hearing loss and service connection for sleep apnea. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned 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). This claim 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).