Citation Nr: 18154545 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 16-39 437 DATE: December 3, 2018 ORDER The petition to reopen the claim for service connection for sleep apnea is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for median nerve paralysis, left hand is remanded. Entitlement to service connection for median nerve paralysis, right hand is remanded. Entitlement to service connection for carpal tunnel syndrome, left hand is remanded. Entitlement to service connection for carpal tunnel syndrome, right hand is remanded. FINDINGS OF FACT 1. Entitlement to service connection for sleep apnea was denied by an unappealed May 2009 rating decision. 2. Since the May 2009 rating decision, the Veteran has submitted new evidence that relates to a previously unestablished element of the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2009 rating decision that denied service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. 2. The evidence received since the May 2009 rating decision is new and material, and the claim for service connection for sleep apnea is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1998 to October 2004. In a June 2016 rating decision, the RO granted the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating, effective April 5, 2012 and a 70 percent rating, effective June 10, 2016. In November 2016, the Veteran filed a Notice of Disagreement (NOD) with the effective date of the 70 percent rating. Similarly, service connection for migraines was denied in a July 2017 rating decision and the Veteran filed an NOD regarding that denial in February 2018. However, the RO has not issued a Statement of the Case (SOC) in response to either the November 2016 or February 2018 NOD. As the RO has acknowledged receipt of the NODs, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999) (where an NOD had not been recognized). As the record reflects that the NODs have been recognized, a remand of the issues pursuant to Manlincon is not warranted in this case. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decision makers, and “material” evidence means 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 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran initially filed a claim for service connection for a sleep disorder, claimed as sleeplessness, in February 2009. The Veteran’s claim was denied in a May 2009 rating decision. The RO stated that the Veteran’s VAMC records and other evidence of record did not show a diagnosis of a sleep disorder. The Veteran did not appeal this rating decision and it became final. 38 U.S.C. § 7105. Since the May 2009 rating decision, additional evidence has been associated with the claims file. The Veteran submitted a September 2010 private polysomnography results noting an impression of moderate obstructive sleep apnea. Also, a February 2015 prison medical progress note reflects a diagnosis of obstructive sleep apnea. This evidence is new, as it was not part of the record at the time of the prior denial of the claim. It is also material, as it relates to the previously unestablished element of whether the Veteran has a current diagnosis of sleep apnea. When viewed with the previous evidence of record, this evidence indicating that the Veteran has a diagnosis of sleep apnea is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the Veteran’s claim. As such, new and material evidence has been received, and reopening the claim is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran seeks service connection for a bilateral hearing loss and tinnitus. A remand is required in order to comply with VA’s duty to assist. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. In an October 2015 private treatment record, a clinician assessed the Veteran with hearing loss bilaterally. Additional prison treatment records dated in 2016 reflect the Veteran failed the whispered voice test. In his April 2016 statement, the Veteran related his hearing loss to in-service exposure to gunfire and loud noises. VA has conceded the Veteran’s high probability for noise exposure. The Veteran has not been afforded an examination in relation to his claimed conditions. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is currently incarcerated and will be for an indefinite period of time. The Veteran was scheduled for an audiology examination in conjunction with this claim. However, according to November 2015 electronic mail from personnel at the San Diego VARO, audio examination requires specific equipment that is not available for transport to the facility of incarceration, and the personnel concluded that the examination cannot be completed. However, the Board finds that by not exploring the feasibility of utilizing equipment already present at the correctional facility to conduct the examination, VA has not fulfilled its duty to assist. In the case of VA medical examinations, VA does not have the authority to require a correctional institution to release a veteran so that VA can provide him the necessary examination at the closest VA medical facility. See, e.g., 38 U.S.C. § 5711. However, VA’s duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995); VA’s Adjudication Procedures Manual contains instructions on attempting to provide an examination for an incarcerated veteran. See M21-1MR, Part III, Subpart iv, 3.A.11.d. Therefore, the Board finds it necessary to remand the claim for service connection for an additional attempt consistent with Bolton and M21-1MR to afford the Veteran an examination in conjunction with his claims for service connection for a bilateral hearing loss and tinnitus. The Board notes that in support of his claim, the Veteran provided prison audiogram results from March 2016 testing. In cases for which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. See 38 C.F.R. § 4.85(a). It appears that the Maryland CNC was not used and thus the March 2016 audiogram does not meet the criteria in 38 C.F.R. § 4.85(a). Thus, the results of this prison testing cannot be used for purposes of determining whether the Veteran has hearing loss for VA purposes. 3. Entitlement to service connection for sleep apnea is remanded. Regarding the Veteran’s claimed sleep apnea, as noted above, private treatment records reflect a current diagnosis of sleep apnea. According to the Veteran’s August 2016 VA Form 9, Substantive Appeal, he stated that he has been having sleep issues since leaving the military and he believes there may be a connection between his claimed sleep apnea and his service-connected posttraumatic stress disorder (PTSD). Therefore, an examination is warranted to determine the nature and etiology of the Veteran’s claimed sleep apnea. 4. Entitlement to service connection for median nerve paralysis, left hand is remanded. 5. Entitlement to service connection for median nerve paralysis, right hand is remanded. 6. Entitlement to service connection for carpal tunnel syndrome, left hand is remanded. 7. Entitlement to service connection for carpal tunnel syndrome, right hand is remanded. VA’s duty to assist includes providing a medical examination when such is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4). According to an April 2016 statement, the Veteran contended that his in-service duties included typing and writing which caused his hand to become numb and that the numbness travels from both hands to the rest of his arms. Prison treatment records dated in February 2015 reflect an assessment of carpal tunnel syndrome and notes that the Veteran has had progressive weakness and numbness in his hands and arms over the prior two years. In light of the foregoing, the Board finds that a remand in order to obtain a medical examination and opinion commenting on the evidence of record is necessary in order to adjudicate these claims. See generally McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The matters are REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All properly identified records, as well as any outstanding prison treatment records, should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken to include notifying the Veteran of the unavailability of the records. 2. After the aforementioned development has been completed and any additional evidence has been associated with the record, schedule the Veteran for an appropriate VA examination to determine the nature, extent and etiology of his claimed bilateral hearing loss and tinnitus. The RO should contact the Veteran’s current place of incarceration, and attempt to schedule him for an audiological examination at the correctional institution. If a VA examiner is unable perform the requested examination at the above-cited correctional institution, request that a qualified medical professional at the correctional institution perform the examination. If the correctional institution proves unwilling or unable to perform the examination, the RO should arrange for an appropriate VA examiner to review the claims folders, and the Veteran’s records, and, to the extent possible, provide the requested medical information and opinions. All scheduling efforts and requests to the correctional institution should be in writing and associated with the Veteran’s claims file. The entire claims file must be made available to and reviewed by the examiner, with such review noted in the provided report. The examiner should record the full history of the disorders including the Veteran’s account of symptomatology. All necessary tests should be conducted and the results reported. a) The examiner is asked to determine whether the Veteran has a current hearing loss disability per 38 C.F.R. § 3.385. b) The examiner is also requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current bilateral hearing loss disability and/or tinnitus disability identified on examination is causally related to the Veteran’s period of active military service or any incident therein, including exposure to acoustic trauma; or was manifested to a compensable degree within one year of service. The examiner must provide a rationale for all opinions. If the examiner is unable to provide an opinion without resort to mere speculation, he or she should so indicate and explain why an opinion cannot be rendered. 3. Schedule a VA examination to determine the nature and etiology of claimed sleep apnea. The entire claims file must be made available to and reviewed by the examiner, with such review noted in the provided report. The examiner should record the full history of the disorder including the Veteran’s account of symptomatology. All necessary tests should be conducted and the results reported. The examiner should respond to the following: a) Confirm whether the Veteran currently has a sleep apnea disability, including obstructive sleep apnea. b) For any sleep apnea disability found, is at least as likely as not (50 percent or greater probability) that sleep apnea had its clinical onset during the Veteran’s active service, or is otherwise related to active service, including to any in-service injury or disease? c) For any sleep apnea disability found, is it at least as likely as not (50 percent or greater probability) caused or aggravated by the Veteran’s service-connected PTSD? The examiner is asked to consider the September 2010 private polysomnography results noting an impression of moderate obstructive sleep apnea and February 2015 prison medical progress note reflecting a diagnosis of obstructive sleep apnea. The examiner must provide a rationale for all opinions. If the examiner is unable to provide an opinion without resort to mere speculation, he or she should so indicate and explain why an opinion cannot be rendered. 4. The Veteran should be afforded a VA examination to determine the nature of any ulnar nerve disability and/or carpal tunnel syndrome, and to obtain an opinion as to whether such is related to service. The entire claims file must be made available to and reviewed by the examiner, with such review noted in the provided report. The examiner should record the full history of the disorders including the Veteran’s account of symptomatology. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any ulnar nerve disability and/or carpal tunnel syndrome is related to an in-service injury, event, or disease; even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. The examiner is asked to consider the February 2015 prison medical progress note diagnosis of carpal tunnel syndrome and observation regarding progressive weakness and numbness in hands and arms.   The examiner must provide a rationale for all opinions. If the examiner is unable to provide an opinion without resort to mere speculation, he or she should so indicate and explain why an opinion cannot be rendered. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel