Citation Nr: 18143867 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-20 376 DATE: October 22, 2018 REMANDED Entitlement to service connection for bilateral hearing loss disability. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a sinus disability is remanded. REASONS FOR REMAND The Veteran had active naval service from November 1976 to November 1980 and from February 1981 to February 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board notes that on review of the record, there is no indication the Veteran disagreed with the October 2013 rating decision denying service connection for a sinus disability. Specifically, the Veteran’s November 2013 notice of disagreement does not reflect disagreement with the denial of that issue. Moreover, while the Veteran checked that he wants to appeal all of the issues listed on his statement of the case, he listed specific issues and did not include a sinus disability. The Board recognizes the VA regulations pertaining to the appellate process and the perfection of an appeal. See 38 C.F.R. §§ 20.200-202 and 20.300-302 (2016). Nevertheless, the Board will accept appellate jurisdiction of that issue, as the Veteran is justified in relying on communications from VA regarding its appellate status, notably the March 2016 statement of the case. See Percy v. Shinseki, 23 Vet. App. 37 (2009). 1. Bilateral Hearing Loss Disability The Board notes that the Veteran has consistently asserted that his difficulty hearing began while in service. The Veteran is competent to report that he first experienced symptoms of bilateral hearing loss disability while he was in active service and that those symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In fact, the Veteran’s service treatment records show that the Veteran had some degree of hearing loss while in service. A June 2012 audiology consultation noted that the Veteran had good speech discrimination bilaterally, and that the Veteran had normal hearing through 4000 Hz bilaterally. However, that consultation did not address the lay statements of record noting that the Veteran could not hear his wife speak. Moreover, that consultation recommended that the Veteran’s hearing be tested every three years. Indeed, the Veteran has not been afforded an actual VA examination for his bilateral hearing loss disability. In light of the above, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any current bilateral hearing loss disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Back Disability The Veteran was afforded a VA examination of his back in July 2013. At that examination, the Veteran reported that his symptoms began in 1981, and were caused by a line of duty injury. The examiner confirmed a diagnosis of thoracolumbar degenerative disc disease. The examiner found that the Veteran’s back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner noted that stiffness of the lower back during cold weather was mentioned during the Veteran’s discharge physical examination, but stated that there was no evidence of any significant thoracolumbar pathology among the Veteran’s military records. The Board finds that the July 2013 VA medical opinion to be inadequate for adjudicative purposes. In that regard, the Veteran’s service treatment records note an April 1977 in-service notation of back pain due to a traffic accident. Moreover, the Veteran’s wife stated that the Veteran complained of low back pain radiating to his legs as early as 1978. The examiner did not appear to address the above in-service injury, or the lay statements of record. Thus, a new VA opinion should be obtained. 3. Right and Left Knee Disabilities The Veteran was afforded a VA knee and lower leg examination in July 2013. The examiner confirmed diagnoses of degenerative joint disease in both knees. At that examination, the examiner noted that the Veteran’s symptoms began in 1981, and were caused by a line of duty injury. The examiner found that the Veteran’s knee disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner noted that stiffness of the knees during cold weather was mentioned during the Veteran’s discharge physical examination, but stated that there was no evidence of any significant knee pathology among the Veteran’s military records. The Board finds the July 2013 VA medical opinion to be inadequate for adjudicative purposes. Additionally, subsequent to the July 2013 VA opinion, the Veteran’s wife seemed to assert that the Veteran’s left and right knee disabilities were secondary to his low back disability. In that regard, she stated that the Veteran complained of low back pain that radiated down both legs, and effected his knees. As noted above, the Board remanded entitlement to service connection for a back disability for a new VA examination. Therefore, entitlement to service connection for a left and right knee disability cannot be decided until the above pending claim is decided. Additionally, the Veteran should be afforded a new VA examination to determine the nature and etiology of his left and right knee disability, to include whether the disability caused or aggravated by his back disability if the back disability is determined to be related to the Veteran’s active service. 4. Sleep Apnea The Board notes that the Veteran has consistently asserted that he had difficulty sleeping while in service, and that he would often feel tired during the day. Moreover, the Veteran submitted a statement from his wife stating that the Veteran snored loudly, and held his breath during sleep. Additionally, the Veteran provided an April 2016 buddy statement indicating that the Veteran snored loudly and would stop breathing in his sleep during service. In light of the Veteran’s statements and his current diagnosis of sleep apnea, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any current sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Sinus Disability Regarding the Veteran’s sinus disability, the Board finds that the July 2013 VA medical opinion to be inadequate for adjudicative purposes. In that regard, the Board finds that the July 2013 VA examination is internally inconsistent. Specifically, the examiner reported that the Veteran did not have nor had ever been diagnosed with a sinus, nose, throat, larynx, or pharynx condition, and further noted that the Veteran did not have a chronic sinusitis, rhinitis, a larynx or pharynx condition, a deviated nasal septum, or tumors. However, later in the report the examiner stated that the Veteran’s condition in question was clearly documented by the department of defense physicians, therefore the diagnosis of “status post” applies to the condition in question. The examiner did not provide sufficient rationale to explain the apparent contradiction. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA audiology evaluation by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s bilateral hearing loss disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any bilateral hearing loss disability is etiologically related to in-service noise exposure. The rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s back disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any back disability is etiologically related to service. In forming the opinion, the examiner must address the April 1977 in-service notation of back pain due to a traffic accident. The examiner should also address the lay statements of record regarding the onset and continuity of the Veteran’s symptoms. The rationale for all opinions expressed must be provided. 4. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any current left and/or right knee disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently present left and/or right knee disability is etiologically related to service. Additionally, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any currently present left and/or right knee disability is caused or chronically worsened by his low back disability. The rationale for all opinions expressed must be provided. 5. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s sleep apnea. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. The examiner should be sure to address the lay statements of record. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is etiologically related to service. The rationale for all opinions expressed must be provided. 6. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present sinus disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently present sinus disability is etiologically related to service. The rationale for all opinions expressed must be provided. 7. Confirm that the VA examination reports and all opinions provided comport with this remand, and undertake any other development found to be warranted. 8. Then, readjudicate the remaining issues on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel