Citation Nr: 18156714 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-56 215 DATE: December 10, 2018 ORDER The previously denied claim for service connection for bilateral hearing loss is not reopened. The previously denied claim for service connection for tinnitus is reopened and granted. REMANDED The claim for a rating in excess of 10 percent for a lumbosacral strain disability is remanded. The claim for service connection for a sleep disorder, to include sleep apnea, is remanded. FINDINGS OF FACT 1. Service connection for bilateral hearing loss was previously denied in an April 2011 rating decision. 2. Evidence submitted since the April 2011 rating decision is new, but is not material as it is cumulative and redundant of evidence already of record and therefore raises no reasonable possibility of substantiating the claim for bilateral hearing loss. 3. Service connection for tinnitus was previously denied in an April 2012 rating decision. 4. Evidence submitted since the April 2012 rating decision is new and material, and supports the grant of service connection. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim for bilateral hearing loss have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105; 38 C.F.R. §§ 3.156(a), 3.159, 20.1103. 2. The criteria for reopening a previously denied claim for tinnitus have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105; 38 C.F.R. §§ 3.156(a), 3.159, 20.1103. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 5103; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2002 to September 2009. The Board notes that in association with his sleep apnea claim the Veteran reported symptoms that are not generally associated with sleep apnea, but rather some other sleep disorder. Specifically, the Veteran has reported difficulty falling asleep and only short periods of sleep. Additionally, the Veteran’s service records indicate that he reported difficulty sleeping or feeling tired after sleeping. Therefore, the Board has expanded the claim to one for a sleep disorder to include all the Veteran’s symptoms. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence Generally, a claim that has been denied in an unappealed regional office decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to the general rule allows for reopening where new and material evidence exists. 38 U.S.C. § 5108; Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence exists to reopen a claim for service connection for bilateral hearing loss. The Veteran asserts that new and material evidence exists to reopen his claim for hearing loss. The Veteran filed an original claim for bilateral hearing loss in August 2010. The claim was denied in an April 2011 rating decision. The Agency of Original Jurisdiction (AOJ) found the evidence was insufficient to demonstrate that the Veteran had a current hearing disability as his audiometric testing did not demonstrate hearing loss in either ear for VA purposes. The Veteran was notified of such decision but did not file a notice of disagreement, or submit any new and material evidence within the one-year appeal period, and that decision became final. The Veteran submitted a request to reopen his previously denied claim for service connection in April 2013. The evidence of record at the time of the April 2011 rating decision included service medical records and two VA examinations. Service medical records are silent for complaints or treatment of hearing loss. A September 2003 audiogram indicates normal hearing bilaterally. Hearing conservation data forms from 2005, 2007, 2008, and 2009, indicate normal hearing bilaterally. A December 2010 VA audiological examination indicates the Veteran reported difficulty hearing others and extensive acoustic trauma during active service from Abrams Tanks. The examiner noted that the Veteran’s case file was unavailable for review. The Veteran was noted to experienced normal hearing bilaterally without a hearing loss disability for VA purposes. A January 2012 VA audiological examination noted that the Veteran reported being unable to hear on occasion. The Veteran asserted that his hearing impairment impacted his daily life. The Veteran was assessed with normal hearing bilaterally and was not shown to experience a hearing loss disability in either ear for VA purposes. The Veteran was also noted to experience no significant change or aggravation of hearing loss in service. The examiner noted that the Veteran’s hearing on examination was not significantly different from what was shown by his September 2003 service reference audiogram. Pertinent evidence received since the April 2011 rating decision includes an April 2013 claim for reopening a previously denied claim for service connection for hearing loss; an October 2013 statement in support of the claim indicating that the Veteran does not hear as well as he once did since his separation from service; a May 2014 notice of disagreement indicating that the Veteran believes he has hearing loss because he has difficulty hearing and believes the hearing loss is service connected because he was an M1 armor crewman. The Board finds that the evidence submitted since the April 2011 rating decision is new as it had not been previously considered. However, the lay statements from the Veteran are not found to be material in that they do not relate to the prior final denial and do not raise a reasonable possibility of substantiating the Veteran’s claim. The Board acknowledges that there is a low threshold to reopening a claim, but it is a threshold, and the two statements do not reach this threshold as they would not trigger any duty to assist on VA’s part should the claim be reopened. This evidence is also cumulative and redundant of evidence in the record. The Veteran’s lay assertions about hearing loss and noise exposure were reported during his VA examination and have been considered in the April 2011 rating decision. In general, the new evidence does not raise a reasonable possibility of substantiating the claim. There is no objective medical evidence indicating that the Veteran’s has hearing loss for VA purposes. Accordingly, the previously denied claim of entitlement to service connection for bilateral hearing loss is not reopened. 2. Whether new and material evidence exists to reopen a claim for service connection for bilateral tinnitus. The Veteran filed an original claim for tinnitus in August 2010. The claim was denied by an April 2012 rating decision. The AOJ found the evidence was insufficient to demonstrate a causal relationship between the Veteran’s military service and his tinnitus. The Veteran submitted a request to reopen his previously denied claim for service connection in April 2013. The claim was received shortly before the expiration of the one-year appeal period. The April 2013 claim identified the issues on appeal and, standing alone, cannot be reasonably construed as expressing disagreement with the RO’s determination and a desire for appellate review. Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). The April 2013 submission simply requests reopening with no accompanying statements or assertions related to appeal or disagreement. Based on the information provided, the Board finds that the Veteran did not file a notice of disagreement, or submit any new and material evidence within the one-year appeal period, and that the April 2012 decision became final. Having reviewed the evidence of record, the Board finds that it is sufficient to reopen and grant the claim for service connection for tinnitus. The Veteran’s MOS involved working with tanks in service, clearly establishing military noise exposure. Tinnitus is a chronic disability, meaning that if it manifests to a compensable level within a year of service, it is presumed to have been the result of service. Such is the case here. The Veteran separated from the service in September 2009 and filed a claim for tinnitus in August 2010. That is, within a year of separation. He was diagnosed with tinnitus at a VA examination shortly thereafter. As such the evidence of record establishes the fact that the Veteran had a chronic disability, tinnitus, within a year of service and therefore, service connection is granted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for a lumbosacral strain disability is remanded. In May 2014 and October 2016 statements, the Veteran asserted that his back disability has increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity of his back disability. 2. Entitlement to service connection for a sleep disorder, to include sleep apnea. The Veteran filed a claim for sleep apnea in November 2013, asserting that he believes he has sleep apnea as a result of his military service. The Veteran’s 2007 and 2009 post-deployment assessments indicate that he reported problems sleeping or falling asleep. In written correspondence, the Veteran reported that he experiences an inability to sleep, taking several hours to fall asleep and sleeping for very short periods of time. The Board notes that the Veteran is also service connected for post-traumatic stress disorder (PTSD) characterized by symptoms that involve chronic sleep impairment, which are similar to his reported symptoms associated with his original sleep apnea claim. Based on the foregoing, the Board cannot make a fully-informed decision on the issue of service connection for a sleep disorder because no VA examiner has opined whether the Veteran’s reported symptoms are causally related to his military service, and if so, whether such symptoms are a sepearate disability from the Veteran’s current service-connected PTSD. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of his service-connected lumbosacral strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to lumbosacral strain alone and discuss the effect of the Veteran’s spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner should explain why. 2. Schedule the Veteran for an examination to determine the nature and etiology of any sleep disorder disability. (Continued on the next page)   The examiner should determine whether the Veteran has a sleep disorder to include sleep apnea. If the Veteran’s sleep problems are found to be a symptom of his service connected PTSD, it should be so noted. If a sleep disorder is diagnosed, the examiner should opine as to whether it is at least as likely as not that the diagnosed sleep disorder either began during or was otherwise caused by his military service to include as indicated by complaints of problems sleeping or feeling tired after sleeping while in service. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel