Citation Nr: 18145124 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 12-05 152 DATE: October 26, 2018 ORDER New and material evidence having been submitted, the petition to reopen the claim of service connection for a lower back strain is granted. New and material evidence having been submitted, the petition to reopen the claim of service connection for left ear hearing loss is granted. Service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for a lower back strain is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The evidence associated with the claims file following the April 2009 denial of the Veteran’s claim for service connection for a lower back strain is new and material. 2. The evidence associated with the claims file following the May 1977 denial of the Veteran’s claim for service connection for left ear hearing loss is new and material. 3. Left ear hearing loss is etiologically related to an in-service injury, event or disease. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for a lower back strain. 38 U.S.C. § 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has been received to reopen a claim for service connection for left ear hearing loss. 38 U.S.C. § 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to April 1973. Three years after separation from service, in March 1977, the Veteran filed his initial claim for service connection for a lower back strain and bilateral hearing loss. In a May 1977 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied the claims. The Veteran appealed only the lower back claim to the Board of Veterans Appeals (Board), and in an April 1978 decision, the Board denied service connection. The Veteran did not appeal the Board’s decision, and it became final. There were no further filings in the case until February 2009, when the Veteran sought to reopen the claim for his lower back strain; the claim was denied in April 2009. In a September 2011 rating decision, the RO denied the Veteran’s petition to reopen his lower back strain claim and his new claim for sleep apnea; and, in an August 2013 rating decision, the RO denied his claim to reopen bilateral hearing loss. The Veteran appealed both rating decisions, but as it pertains to the hearing loss claim, he appealed only the denial of left ear hearing loss. The appeals were consolidated by the RO when it issued an October 2016 Supplemental Statement of the Case (SSOC) that denied service connection for the lower back strain, left ear hearing loss, and newly claimed sleep apnea. The Veteran timely appealed. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a lower back strain. The Board finds that new and material evidence regarding the Veteran’s lower back strain has been received since the April 2009 denial, to include VA treatment records from El Paso VAMC; additional lay evidence; a December 2011 VA examination; a private treatment record dated from 1977; and, a 2018 MRI of the lumbar spine. This new evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for a lower back strain is reopened. 2. New and material evidence has been presented to reopen claim for service connection for left ear hearing loss. The Board finds that new and material evidence regarding the Veteran’s left ear hearing loss has been received since the May 1977 denial, to include VA treatment records from El Paso VAMC; lay evidence; a May 2013 VA examination; and, an August 2013 rating decision that granted tinnitus. This new evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for left ear hearing loss is reopened. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 3. Entitlement to service connection for left ear hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. §3.385. The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). To establish service connection, the Veteran is not obliged to show that his hearing loss was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Here, the Veteran stated he was exposed to extremely loud noises while serving in the Air Force as an airplane mechanic. Specifically, the Veteran states he worked in an airplane hangar and on flight lines where he was exposed to jet engine noise. The question for the Board is whether the Veteran’s current diagnosis of left ear hearing loss either began during active service, or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran’s left ear hearing loss is etiologically related to his active service. Service treatment records are silent as to any complaint, treatment, or diagnosis of hearing loss. At the Veteran’s March 1969 entrance to service and at his September 1992 service separation, Reports of Medical Examination showed normal hearing for VA compensation purposes. In May 2013, the Veteran underwent a VA examination. Audiological testing showed the following audiometric readings: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 10 20 20 LEFT 30 25 20 35 40 Speech recognition scores were listed for the left ear at 100 percent. Although the results of this audiological testing reflect hearing loss in the Veteran’s left ear for VA purposes, the examiner opined that the Veteran’s left ear hearing loss was not related to service. As rationale, the examiner stated there was no evidence of hearing loss at separation from service. The Board finds this opinion to be inadequate and points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, the Veteran’s credible statements that he had noise exposure from jet engines in service is supported by the DD-214 which shows his MOS was Airframe Repair Specialist. The Board also notes the Veteran is service connected for tinnitus due to noise exposure in service. In light of the above, there is probative evidence for the claim. In particular, the Board finds the Veteran to be credible in his statements that he was exposed to loud noises in service and has had problems hearing ever since. Further, the Board finds probative the VA audiological testing results, which indicate that the Veteran has left ear hearing loss. As such, and resolving all reasonable doubt in the Veteran’s favor, the service connection claim for left ear hearing loss is granted. REASONS FOR REMAND 1. Entitlement to service connection for lower back strain is remanded. The Board finds that additional evidentiary development is needed before the Board can render a decision on the lower back strain claim. The Board notes that although the December 2011 VA examiner rendered a negative etiological opinion, the examiner did not have the benefit of considering the newly submitted 1977 private treatment record which provides additional detail about the Veteran’s back injury in service, hospitalization at Cannon Air Force Base Hospital, and follow up treatment. In light of this newly submitted evidence, the Board finds that an addendum medical opinion must be obtained. The Board also notes that the agency of original jurisdiction (AOJ) must make efforts to obtain the Veteran’s 1977 hospitalization records at Cannon Air Force Base Hospital, and associate those records with the Veteran’s claims file. 2. Entitlement to service connection for sleep apnea is remanded. The Board finds that additional evidentiary development is needed before the Board can render a decision on the sleep apnea claim. The Board notes that although the October 2016 VA examiner rendered a negative etiological opinion, he did not address all of the Veteran’s symptoms. In particular, the examiner specifically noted that the snoring described in the lay statements is a nonspecific symptom which is not specifically characteristic of obstructive sleep apnea, but the examiner did not address the additional symptoms noted in the lay evidence, such as erratic breathing, quitting breathing throughout the night, talking in his sleep, sleepwalking and nightmares. Since the examiner failed to consider these additional symptoms, the Board finds that an addendum medical opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file the 1977 medical records from the Cannon Air Force Base Hospital as referenced in the recently submitted 1977 medical record from a private physician. 2. Contact the examiner that performed the December 2011 VA examination or another appropriate medical professional and obtain an addendum opinion to determine the etiology of the Veteran’s claimed lower back strain, or any other lumbar spine condition found to be present. If an addendum would be insufficient to provide an adequate opinion, afford the Veteran a new VA examination. The examiner must offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed lower back disability had its onset in service or is otherwise related to service. In rendering this conclusion, the examiner must discuss the Veteran’s complaints of back pain during service; the 1977 medical record from a private physician; and, the April 2018 MRI that showed arthritis and bulging discs. Any required testing should be conducted. 3. Contact the examiner that performed the October 2011 VA examination or another appropriate medical professional and obtain an addendum opinion to determine the etiology of the Veteran’s claimed sleep apnea, or any other sleep disorder found to be present. If an addendum would be insufficient to provide an adequate opinion, afford the Veteran a new VA examination. The examiner must offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s claimed sleep apnea had its onset in service or is otherwise related to service. In rendering this conclusion, the examiner must discuss the Veteran’s symptoms as noted in the lay evidence, to include snoring, erratic breathing, quitting breathing throughout the night, talking in his sleep, sleepwalking and nightmares. If the examiner rejects the Veteran’s reports, he or she should provide a rationale for doing so. A complete rationale must be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, he or she should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel