Citation Nr: 18157291 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-09 817 DATE: December 12, 2018 ORDER New and material evidence having been received by VA sufficient to reopen a previously-denied claim to establish service connection for bilateral hearing loss, the claim is reopened. Entitlement to an effective date of November 14, 2011, but no earlier, for the grant of service connection for limited motion of temporomandibular articulation (hereinafter, jaw disability) associated with limitation of motion of the cervical spine due to a shrapnel injury of the left jaw and neck with retained foreign bodies and scarring (hereinafter, neck disability) is granted. REMANDED Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for a neurologic disability affecting the jaw and vocal cords is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability is remanded. Entitlement to an evaluation in excess of 20 percent for a service-connected neck disability is remanded. Entitlement to an initial evaluation in excess of 10 percent for a service-connected jaw disability is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A July 2010 rating decision denied the Veteran's claim to establish service connection for bilateral hearing loss disability; the Veteran did not appeal that decision, nor was any new and material evidence submitted within the appeal period. 2. Evidence received since the final July 2010 rating decision raises a reasonable possibility of substantiating the issue to establish service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The July 2010 rating decision is final with respect to the Veteran's claim to establish service connection for bilateral hearing loss. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. Evidence received to reopen the issue of entitlement to service connection for bilateral hearing loss is new and material, and the issue is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to an effective of November 14, 2011, but not earlier, for the grant of service connection for a jaw disability have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1968 to June 1971, to include service in the Republic of Vietnam. He is in receipt of a Combat Infantryman Badge and a Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing at the Detroit RO. A transcript of this hearing is of record. Clarification of an issue on appeal During the pendency of the Veteran’s appeal of an issue seeking an increased initial evaluation for service-connected posttraumatic stress disorder (PTSD), the Veteran filed a claim to establish TDIU. As such, the issue seeking TDIU is part and parcel of the claim and resulting appeal seeking an increased evaluation for this service-connected disability. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In a March 2015 Decision Review Officer (DRO) decision, the Agency of Original Jurisdiction (AOJ), among other actions, increased the initial evaluation assigned for the Veteran’s service-connected PTSD from 50 percent disabling to 100 percent disabling, effective from June 1, 2012. In the March 2015 DRO decision and accompanying Statement of the Case (SOC), the AOJ stated that this increase satisfied the Veteran’s appeal seeking an increased initial evaluation for this disability and rendered his appeal seeking TDIU moot. While the Board agrees that the Veteran’s appeal seeking an increased initial evaluation for PTSD has been abrogated, entitlement to TDIU remains in appellate jurisdiction because a potential allowance, coupled with further evaluation increases, may give rise to entitlement to Special Monthly Compensation (SMC). Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). As such, the issue has been included on the title page. The Veteran initially filed a claim to establish service connection for partially paralyzed vocal cords associated as a residual of his in-service shell fragment wound of the jaw and neck. However, testimony at the May 2018 clarified that the symptoms being claimed by the Veteran were more neurologic in nature, including impairment of the nerve branches affecting the vocal cords and manifesting as numbness and tingling of the jaw. As such, the issue has been recharacterized to more accurately reflect the Veteran’s assertions. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Whether new and material evidence has been received by VA which is sufficient to reopen the previously-denied claim to establish service connection for bilateral hearing loss Service Connection and New and Material Evidence Pertinent procedural regulations provide that “[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108].” 38 U.S.C. § 5103A (f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA has specifically defined the term "disability" for service connection claims involving impaired hearing. 38 C.F.R. § 3.385 (2017). “[I]mpaired 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.” Id. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection for organic diseases of the nervous system, such as sensorineural hearing loss, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). New evidence means existing evidence not previously submitted to VA. Material evidence means existing 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 prior 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) (2017). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2012). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b) (2017); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Petition to reopen For the reasons stated below, the Board concludes that, since the prior final denial of this claim in a July 2010 rating decision, VA has received evidence which is new and material and raises a reasonable possibility of substantiating the issue. As such, the issue is reopened. Pertinently, the Veteran’s claim to establish service connection for bilateral hearing loss was denied by the AOJ in the July 2010 rating because the evidence of record did not reflect that the disability was proximately due to or the result of the Veteran’s service. Although the Veteran initiated an appeal regarding this issue and was provided an SOC in August 2011 which continued the prior denial, he did not perfect an appeal to the Board by filing a timely substantive appeal. As such, the July 2010 rating decision became final with regard to the Veteran’s claim to establish service connection for bilateral hearing loss. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Throughout the pendency of the current appeal, the Veteran’s previously-denied claim has not been reopened and/or considered on the merits. Regardless, the Board is not bound by the AOJ’s determinations as to whether the claim should be reopened, and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The basis of the prior final denial by the AOJ in July 2010 is articulated above. In order for the claim to be reopened, evidence must have been added to the record since the July 2010 rating decision that addresses this basis. Pertinently, in a September 2012 statement, the Veteran asserted that his hearing acuity began to diminish during his active duty and has gotten progressively worse since that time. Essentially, the Veteran contends that service connection for bilateral hearing loss should be granted under 38 C.F.R. § 3.303(b) and the Court’s holding in Walker. Concerning the Veteran’s lay statements, while he does not have the medical training necessary to competently and credibly state whether his hearing acuity met the criteria of 38 C.F.R. § 3.385 at any certain point in time, he is considered competent and credible to report symptoms that he experiences first-hand which are readily observable to lay persons, such as difficulty hearing. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). The above evidence is “new,” as it had not been previously considered by VA at the time of the July 2010 rating decision, and “material” as it raises the reasonable possibility of substantiating the previously denied claim. The Board thus finds that new and material evidence has been submitted to reopen the claim to establish service connection for bilateral hearing loss since the prior final denial in July 2010. On that basis, the claim is reopened. 2. Entitlement to an effective date prior to November 18, 2011, for the grant of service connection for a jaw disability The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 24, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree. Analysis The Veteran seeks an effective date earlier than November 18, 2011, for the award of service connection for a jaw disability, diagnosed as limited motion of temporomandibular articulation. At the May 2018 hearing, the Veteran and his private attorney assert that the effective date of this award should be June 29, 1971 – the date after his separation from active duty. For the reasons stated below, the Board concludes that an effective date of November 14, 2011, but no earlier, for the Veteran’s jaw disability is warranted. The record reflects that the Veteran suffered a shell fragment wound injury to the left jaw and neck in February 1970, while serving in the Republic of Vietnam. In addition to the initial impact injury to the jaw, he avers that his jaw was further injured when it was forcibly manipulated by service medical personnel during initial treatments for his shell fragment wound. Two weeks after separating from active duty, the Veteran filed a claim to establish service connection for “[A] [p]iece of [h]and [g]renade in the [neck]” suffered in February 1970. In a November 1971 rating decision, the AOJ established service connection for residuals of a shell fragment wound to the left neck region and Muscle Group I; a 10 percent initial evaluation was assigned from June 29, 1971 – the day after the Veteran’s separation from active duty. The Veteran was notified of the November 1971 rating decision later that month, and he did not submit new and material evidence or express disagreement with the assigned initial evaluation or effective date of the award during the appellate period. As such, the November 1971 rating decision became final regarding these downstream issues. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. In August 2009, the Veteran filed a claim for an increased evaluation for his service-connected neck disability, noting the retained metallic foreign bodies and asserting that this disability was inaccurately defined and rated by the AOJ. The Board observes that this statement does not mention the Veteran’s mandible or any symptoms relating to his jaw. This claim seeking an increased evaluation was denied by the AOJ in a February 2010 rating decision, and the Veteran expressed disagreement the next month. The Veteran was provided an SOC in August 2011 which continued to deny this appealed issue, but the Veteran did not perfect an appeal to the Board by filing a timely substantive appeal. As such, the February 2010 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. On November 14, 2011, the AOJ received from the Veteran a VA Form 9 (Substantive Appeal to the Board of Veteran’s Appeals) which was intended to perfect an appeal of the issue seeking an increased evaluation for his service-connected neck disability. While this filing was considered untimely for the purpose which it was submitted, it was ultimately accepted as a new claim seeking an increased evaluation for this disability, as the document includes several statements concerning his neck symptoms. On November 18, 2011, the AOJ received a statement from the Veteran’s private attorney which outlined the symptoms associated with his service-connected neck disability in more detail. Particularly, this statement asserted that the Veteran’s left jaw functionality was impaired due to his in-service shell fragment wound injury and resulting treatment. In a July 2012 statement, the Veteran’s private attorney more specifically noted that the Veteran was seeking to establish service connection for temporomandibular joint disorder (TMJ). After undertaking extensive development, in the May 2013 rating decision, the AOJ recharacterized the Veteran’s service-connected neck disability stemming from his in-service shell fragment wound: a 20 percent evaluation was assigned for the Veteran’s limitation of motion of the neck, injury to Muscle Group I, and residual scarring from November 18, 2011; and a 10 percent initial evaluation was assigned for limited motion of temporomandibular articulation associated with the shell fragment wound injury from November 18, 2011. These determinations represent a partial increase and recharacterization of the Veteran’s previously service-connected disability (limitation of motion of the neck, residual scarring, and injury to Muscle Group I) and a grant of service connection for a separate disability (limited motion of temporomandibular articulation) with the assignment of an initial evaluation and effective date for the award of service connection. With the above facts in mind, the Board concludes that an effective date of November 14, 2011, but no earlier, for the grant of service connection for a jaw disability is warranted. As clearly evidenced in the file, an AOJ employee noted that the Veteran’s November 2011 substantive appeal, received on November 14, 2011, was untimely to perfect an appeal to the Board regarding the issue seeking an increased evaluation for his service-connected neck disability; however, the issues noted therein would be accepted as new claims for VA benefits. See a July 2012 deferred rating decision. Despite the above facts, the AOJ’s recharacterization of the Veteran’s service-connected disability, partial allowance of the increased evaluation, and award of service connection for a new disability stemming from the service-connected disability were made effective from the date of receipt of the letter from the Veteran’s private attorney – November 18, 2011. While the reasons for this are unclear, the Board notes that the submission received by the AOJ on November 14, 2011, clearly asserted that an increased evaluation for the Veteran’s service-connected neck disability were warranted. Although this record makes no mention of symptoms or diagnoses relating to the jaw and/or mandible stemming from the Veteran’s neck disability or in-service shell fragment wound, the Board concludes that the award of service connection for this disability stems naturally from his claim for an increased evaluation for his service-connected neck disability – a claim for which was clearly articulated in the Veteran’s untimely substantive appeal. As such, the effective date of this award, and the recharacterization and partial allowance of his service-connected neck disability, should be November 14, 2011, under the controlling laws. To that extent, the appeal is granted. The remaining question before the Board is whether an effective date earlier than November 14, 2011, can be assigned for the grant of service connection for the Veteran’s service-connected jaw disability. As recounted above, the Veteran and his private attorney argue that this award should be made effective from June 29, 1971 – the day after the Veteran’s separation from active duty. At the May 2018 hearing, it was more specifically asserted that service connection for this disability should have been granted as part and parcel of the Veteran’s initial claim to establish service connection for residuals of a shell fragment wound to the neck, which was filed within the Veteran’s initial post-service year. While the Board understands this assertion, as noted above, the November 1971 rating decision which established service connection and assigned the initial evaluation for this disability is final. As such, it may only be revised if clear and unmistakable error (CUE) is found to be present in the rating decision. 38 C.F.R. § 3.105 (2017). Such a claim has neither been specifically raised by the Veteran and his private attorney nor developed and adjudicated in the first instance by the AOJ. Accordingly, that matter is not in appellate status or properly before the Board at this time. The same is true of the Veteran’s assertion pertaining to the final February 2010 rating decision which continued the assigned 10 percent evaluation for the Veteran’s service-connected neck disability. With the above in mind, the Board observes that there is no correspondence from the Veteran or his private attorney between the AOJ’s issuance of the August 2011 SOC and the AOJ’s receive of the untimely substantive appeal on November 14, 2011. Even if a VA examination or hospitalization report noted jaw symptoms or disabilities between the expiration of the appeal period of the February 2010 rating decision and November 14, 2011, which they do not, these reports could not be construed as an informal claim to establish service connection for a jaw disability because prior, a formal claim for such a disability had not been disallowed for the reason that the service-connected disability is not compensable in degree. In sum, VA did not receive any claim, formal or informal, to establish service connection for a jaw disability between issuance of the August 2011 SOC and November 14, 2011. Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Neither the Veteran nor his private attorney has pointed to any communication or document that could serve as an earlier, unadjudicated claim for benefits during that time period. In fact, the partial allowance detailed above is based on the Board’s liberal interpretation of the Veteran’s claim for an increased evaluation for his service-connected neck disability, as the Veteran’s jaw symptoms were not specifically enumerated until November 18, 2011. Having determined that the Veteran's claim to establish service connection for a jaw disability, as part and parcel of his claim for an increased evaluation for his service-connected neck disability, was filed no earlier than November 14, 2011, the Board must now determine when entitlement to service connection arose. As noted, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2017). Thus, even if the Veteran has been experiencing jaw symptoms following his separation from service in June 1971, November 14, 2011, is clearly the later of two dates specified by law. Hence, on this record, an effective date earlier than November 14, 2011, is not assignable by law. In light of the above, the Board finds that the appropriate effective date for the grant of service connection for jaw disability is November 14, 2011, but no earlier. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (c)(3)(ii). To that extent, the appeal is granted; however, as there is no legal basis for assignment of an effective date earlier than November 14, 2011, the appeal for that period must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran demonstrated bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385 during the appeal period and was unquestionably exposed to excessive noise during combat situations while service in the Republic of Vietnam. Unfortunately, the only nexus opinion of record addressing the etiology of this disability is inadequate. Specifically, the April 2010 VA examiner’s rationale for the negative opinion is contrary to VA's policies concerning the development and adjudication of bilateral hearing loss as per Training Letter 10-02 (March 2010) and the United States Court of Appeals for Veterans Claims' (the Court's) holdings in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), and Hensley v. Brown, 5 Vet. App. 155, 159 (1993), concerning consideration of delayed-onset bilateral hearing loss. In light of above, a remand is necessary to obtain an adequate nexus opinion addressing the etiology and date of onset of this disability. 2. Entitlement to service connection for a neurologic disability affecting the Veteran’s jaw and vocal cords is remanded. As noted in the Introduction, the Veteran’s initial claim has been recharacterized to more accurately reflect the neurologic disabilities and manifestations that the Veteran experiences. As his in-service shell fragment wound with retained foreign bodies is evidenced in the record and his reports of experiencing neurologic impairment affecting his jaw and vocal cords are considered competent and credible, the Board concludes that the low threshold to provide the Veteran a VA neurologic examination and obtain nexus opinions has been met. 3. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability is remanded. In support of his claim to establish service connection for obstructive sleep apnea, the Veteran submitted a November 2013 Disability Benefits Questionnaire (DBQ) confirming a diagnosis upon completion of a sleep study on August 2013; this August 2013 sleep study is not of record. Further, the November 2013 DBQ notes that the Veteran will present to the private physician (Dr. Rowens) for follow-up treatment at a later date. These records are also not associated with the file. Critically, the private physician who completed the November 2013 DBQ did not address the etiology of this disability, to include the recent assertion that such is caused or aggravated by his service-connected PTSD. In light of above, the Board concludes that the November 2013 DBQ is inadequate for the purpose of readjudicating the Veteran’s claim, and a remand is necessary so that he may be provided a VA examination to determine the nature, date of initial onset, and etiology of this disability. 4. Entitlement to an evaluation in excess of 20 percent for a service-connected neck disability is remanded. 5. Entitlement to an initial evaluation in excess of 10 percent for a service-connected jaw disability is remanded. The Veteran was most recently examined to determine the frequency and severity of the manifestations of his service-connected neck and jaw disability more than five years ago. As such, the Board concludes that these issues must be remanded to provide the Veteran with VA examinations to determine the contemporary severity and manifestations of these service-connected disabilities, to include their impact on his employability. To ensure that the VA examiners are fully apprised of the Veteran’s complete disability picture, updated private treatment records must be sought, obtained, and associated with the file. While it does not appear that the Veteran has received VA treatment since his separation from service, he should be requested to identify any outstanding records of VA treatment. 6. Entitlement to TDIU is remanded. The Board must defer readjudication of the Veteran’s claim to establish TDIU at this time because the matter is intertwined with the issues remanded herein. The matters are REMANDED for the following actions: 1. The AOJ must contact the Veteran and ask him to identify any past or present instances of receiving medical treatment at any VA Medical Center and/or associated facility. Any records identified by the Veteran must be obtained and associated with the file. 2. The AOJ must contact the Veteran and request that he complete a release for any post-service private treatment records that are outstanding and pertinent to the issues remanded by the Board that are not already part of the record. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. The Board is particularly interested in the August 2013 sleep study and subsequent records of private treatment from Dr. Rowens. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must provide the Veteran a VA audiology examination conducted by a VA audiologist. After a review of the complete file and interview with and examination of the Veteran, the examiner should undertake appropriate audiometric testing of the Veteran’s bilateral hearing acuity. The examiner must record decibel losses and speech recognition scores for each ear. Thereafter, the examiner must address provide an opinion concerning whether the Veteran’s hearing loss (unilateral or bilateral) is at least as likely as not proximately due to or the result of his conceded in-service noise exposure. *The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Delayed-onset hearing loss must be considered. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected neck and jaw disability. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran’s service-connected jaw and neck disabilities. In addition, the examiner must comment on the Veteran’s service-connected disabilities (alone and collective) impact on his employability. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his obstructive sleep apnea and any identified neurologic disability or disabilities impacting his jaw and vocal cords. The complete record, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. All appropriate tests and studies should be performed and all clinical findings should be reported in detail. Based on a review of the evidence of record and an interview and examination of the Veteran, the examiner should address the following: a. Confirm or rule out a diagnosis of obstructive sleep apnea (confirmed by a sleep study) during the appeal period. b. For any disability identified in part (a), provide an opinion concerning whether such is at least as likely as not proximately due to or the result of the Veteran’s service. c. For any disability identified in part (a), provide an opinion concerning whether such is at least as likely as not caused by a service-connected disability, including PTSD. d. For any disability identified in part (a), provide an opinion concerning whether such is at least as likely as not aggravated by a service-connected disability, including PTSD. e. Identify or rule out any dysfunction of the vagus and trigeminal nerves impacting the Veteran’s vocal cords and jaw, respectively. f. For each disability identified in part (e), provide an opinion concerning whether such is at least as likely as not proximately due to or the result of any incident of the Veteran’s service, to include his in-service shell fragment wound to the jaw and neck. g. For each disability identified in part (e), provide an opinion concerning whether such is at least as likely as not caused by a service-connected disability. h. For each disability identified in part (e), provide an opinion concerning whether such is at least as likely as not aggaravated by a service-connected disability. If the examiner cannot provide any opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 6. Thereafter, the AOJ must undertake any development necessary to readjudicate the Veteran’s issue seeking to establish TDIU, to include verifying his educational and occupational history and scheduling him for additional VA examination(s). 7. Thereafter, the AOJ must readjudicate the Veteran’s pending issues in light of any additional evidence added to the record. If any benefit sought on appeal remains is not granted to the fullest extent, the Veteran and his private attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel