Citation Nr: 18152212 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-52 177 DATE: November 21, 2018 ORDER New and material evidence has been received to reopen a claim for service connection for obstructive sleep apnea. New and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. In an August 2012 rating decision, the RO denied service connection for obstructive sleep apnea. The Veteran did not appeal that decision or submit new and material evidence within one year thereafter. 2. The evidence received since the August 2012 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for obstructive sleep apnea. 3. In a May 2013 rating decision, the RO denied service connection for bilateral hearing loss. The Veteran did not appeal that decision or submit new and material evidence within one year thereafter. 4. The evidence received since the May 2013 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss. 5. The Veteran’s current bilateral hearing loss is related to his military service. CONCLUSIONS OF LAW 1. The August 2012 rating decision denying service connection for obstructive sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the August 2012 rating decision is new and material as to the claim for service connection for obstructive sleep apnea, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The May 2013 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 4. The evidence received since the May 2013 rating decision is new and material as to the claim for service connection for bilateral hearing loss, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. Hearing loss was incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to January 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board also notes that the Veteran has submitted a notice of disagreement (NOD) with the January 2017 and March 2018 decisions that restored a 50 percent rating for PTSD and determined recoupment of separation pay in the amount of $534.60, respectively. See May 2017, April 2018 NODs. However, the Veterans Appeals Control and Locator System (VACOLS) shows that the RO has acknowledged receipt of those NODs and is processing the appeals. Therefore, a remand for the issuance of a statement of the case (SOC) for those issues is not required at this time. See Manlincon v. West, 12 Vet. App. 238 (1999) (finding that if an NOD remains unprocessed, a remand is required for issuance of an SOC). The Board notes that there are VA treatment records and VA examination reports that were added to the claims file after the August 2016 statement of the case (SOC) for which there is not an automatic waiver of initial Agency of Original Jurisdiction (AOJ) consideration. The additional VA treatment records/examinations do not discuss his hearing loss or the etiology of his sleep apnea. Thus, the additional evidence does not materially alter the outcome of the case. As such, the Board finds that remand for initial AOJ review of this evidence is not necessary, and there is no prejudice to the Veteran in proceeding with adjudication of the claims, particularly in light of the favorable dispositions herein. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2017); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. Obstructive Sleep Apnea The RO previously considered and denied a claim for service connection for obstructive sleep apnea (OSA) in an August 2012 rating decision. In that decision, the RO acknowledged the Veteran’s current symptoms, but noted that his service treatment records were negative for any complaints, treatment, or diagnosis of sleep apnea. Therefore, the RO determined that there was no event, injury, or disease in service to which the current disorder could be related. The Veteran was notified of that decision and of his appellate rights, but he did not appeal the determination. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the August 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. At the time of the August 2012 rating decision, the evidence of record included the Veteran’s service treatment records, post-service medical records, and a March 2012 VA examination report. The evidence received since the August 2012 rating decision includes VA treatment records and lay statements from the Veteran and his mother M.J. (initials used to protect privacy). In a June 2014 statement, M.J. indicated that the Veteran never had sleep problems prior to his military service. The Veteran also reported in October 2014 correspondence that he had problems sleeping and breathing in service, but was told it was because of the dust and poor air quality in the areas where they were deployed. In his January 2015 notice of disagreement, the Veteran further alleged that he experienced snoring and morning sleepiness during service, but did not recognize the symptoms as being consistent with sleep apnea. He stated that sleep apnea was not commonly diagnosed at that time and assumed that he was fatigued due to poor air quality, burn pits, sinus issues, or the stressful environment. In addition, the Veteran noted that he was a platoon leader and did not want to be accused of malingering. The Board notes that the Veteran had not previously asserted that his sleep apnea was due to environmental exposures in service. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim, and could reasonably substantiate the claim were it to be reopened by triggering VA’s duty to assist. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for obstructive sleep apnea is reopened. However, as will be explained below, further development is necessary before the merits of the Veteran’s claim can be addressed. Bilateral Hearing Loss The RO previously considered and denied a claim for bilateral hearing loss in a May 2013 rating decision. In that decision, the RO acknowledged that the Veteran had a current diagnosis, but noted that his service treatment records were negative for any complaints, treatment, or diagnosis of hearing loss. The RO also relied on a December 2012 VA examiner’s opinion that his hearing loss was less likely than not incurred in or caused by the claimed in-service event or illness. In so doing, the examiner had noted that testing had revealed a conductive component to the hearing loss. The Veteran was notified of that decision and of his appellate rights; however, he did not file an appeal. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the May 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. The evidence associated with the claims file since the May 2013 rating decision includes private treatment records, VA examination reports, and lay statements. Notably, the lay statements from other individuals attest to the Veteran’s noise exposure and complaints of hearing loss during his military service. That evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim, and could reasonably substantiate the claim. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for bilateral hearing loss is reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2017). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system (including sensorineural hearing loss) are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system (including sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purpose 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. In considering the evidence of record under the applicable laws and regulations, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss. The Veteran has contended that he developed bilateral hearing loss as a result of noise exposure during his military service. See, e.g., October 2014 correspondence; June 2014 buddy statement from C.D. His service personnel records show that he served as a petroleum supply specialist. The Veteran has alleged that he sustained acoustic trauma while refueling tanks and helicopters and from explosives while serving in Iraq and Afghanistan. The Veteran is competent to report noise exposure, and his reports are consistent with the circumstances of his service. In addition, the Veteran has a current diagnosis of bilateral hearing loss which meets the requirements of 38 C.F.R. § 3.385. The Board does acknowledge that atn August 2016 VA examination did not reveal bilateral hearing loss as defined by 38 C.F.R. § 3.385 following a surgical procedure; however, an August 2014 VA examination did reveal left ear hearing loss. A December 2012 VA examination also found him to have bilateral hearing loss. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that service connection can also be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a current disability may include a diagnosis at the time the claim was filed or during its pendency). Thus, the remaining question is whether there is a relationship between his current hearing loss and military service, to include in-service noise exposure. The Veteran’s service treatment records include a July 1997 enlistment examination that found his ears and drums to be normal and did not document hearing loss as defined by 38 C.F.R. § 3.385. He had also denied having a medical history of hearing loss. Thus, the presumption of soundness applies in this case. See McKinney v. McDonald, 28 Vet. App. 15, 29 (2016) (holding that hearing loss that does not meet the requirements of 3.385 is not a "defect" because it is not considered a disability for VA purposes). The Veteran’s service treatment records do indicate that was in a hearing conservation program. A July 2003 audiogram revealed left ear hearing loss, and a July 2005 audiogram documented right ear hearing loss. Moreover, a June 2006 audiogram found him to have bilateral hearing loss. It was noted at that time that the hearing test results showed a positive standard threshold shift where his hearing had worsened. The Veteran separated from service in January 2009 and later filed a claim for service connection in July 2011. In support of his claim, he has submitted a lay statement from C.D. attesting to the fact that the Veteran complained of hearing loss during his military service. A December 2012 VA examiner opined that it was not at least as likely as not that the Veteran’s hearing loss was caused by or a result of his military service. In so doing, he stated that the Veteran primarily had conductive hearing loss. Therefore, he found that it was likely that the Veteran had a medical issue in the middle ear. However, the examiner did not address the Veteran’s hearing loss documented in service and whether the disorder manifested therein. Nor did he address whether the conductive hearing loss or any medical issue causing the disorder was related to the Veteran’s military service A March 2013 VA examiner also opined that the claimed disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She noted that the testing suggested a conductive component to the hearing loss, which is likely the result of a medical issue. However, the Board again notes that the examiner did not address whether the conductive hearing loss was related to any hearing problems documented in service, regardless of whether it may have been due to a medical issue or noise exposure therein. An August 2014 VA examiner again opined that the Veteran’s hearing loss was not at least as likely as not caused by or the result of event during his military service. He explained that the etiology of the Veteran’s hearing loss was due to a medical condition and not noise exposure. Nevertheless, the examiner still did not address whether the medical condition and resulting hearing loss could be related to his military service, including the hearing loss documented in service. A July 2016 VA examiner did not provide a medical opinion regarding the Veteran’s right ear hearing loss because he found that the Veteran did not have a current diagnosis. He did opine that the Veteran’s left ear hearing loss was not at least as likely as not caused by or the result of an event in service. He noted that the Veteran had a medical condition that caused the hearing loss. However, as noted above, there is evidence showing that the Veteran had right ear hearing loss within close proximity to the appeal period. Moreover, the examiner did not discuss whether the medical condition and resulting hearing loss manifested in service or is otherwise related thereto. Based on the foregoing, the Board finds that the VA examiners’ medical opinions have very limited probative value, as they did not address the hearing loss documented in service, regardless of whether it resulted from noise exposure or a medical condition therein. Moreover, as noted above, the service treatment records documented the fact that the Veteran was shown to have bilateral hearing loss in service as defined by 38 C.F.R. § 3.385. Accordingly, resolving all reasonable doubt in the favor of the Veteran, the Board concludes that service connection for bilateral hearing loss is warranted. REASONS FOR REMAND The Veteran has not been afforded a VA examination in connection with his current claim for service connection for obstructive sleep apnea. As previously noted, there lay evidence indicating that he had symptoms of snoring and sleeping and breathing problems in service, and he has been diagnosed with sleep apnea. The Veteran has also asserted that the disorder could be related to environmental exposures in service, such as burn pits and poor air quality. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the etiology of the disorder. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for sleep apnea. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of his sleep apnea. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran’s sleep apnea manifested in service or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology and environmental hazards therein. See, e.g. March 2012 VA examination report (stating that his bunkmate reported snoring and periods of apnea in service); October 2014 lay statement (alleges sleep problems in service, but was told it was due to the dust and poor air quality in the areas where they were deployed); January 2015 NOD (states he had sleep problems, including morning tiredness in service, but assumed it was from poor air quality and burn pits); September 2016 VA Form 9 (alleges that the air was hazardous in deployed areas including Iraq). (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available for review. 3. After completing the foregoing development, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel