Citation Nr: 18157899 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 17-61 507 DATE: December 14, 2018 ORDER Entitlement to service connection for obstructive sleep apnea as due to service-connected posttraumatic stress disorder (PTSD) is granted. The application to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s sleep apnea is caused by his service-connected PTSD. 2. In an October 2002 rating decision, the RO denied the claim for entitlement to service connection for bilateral hearing loss due to the absence of evidence of a current diagnosis of bilateral hearing loss. 3. Evidence received since the October 2002 rating decision relates to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection on a secondary basis for sleep apnea are met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). 2. The October 2002 rating decision that denied the claim for entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.156 (b), 20.1103 (2017). 3. Evidence received since the October 2002 rating decision is new and material and the claim for entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1965 to December 1968. 1. Entitlement to service connection for obstructive sleep apnea as due to service-connected posttraumatic stress disorder (PTSD) is granted Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s sleep apnea is secondary to his service-connected PTSD. Therefore, for the following reasons, entitlement to service connection for sleep apnea on a secondary basis is granted. First, the Board finds that the Veteran has a current diagnosis of sleep apnea. See October 2017 VA Sleep Apnea Disability Benefits Questionnaire (DBQ). Therefore, the current diagnosis requirement is met. The second element on the issue of entitlement to secondary service connection is also met, as the Veteran is service-connected for PTSD. See, e.g., November 2017 Rating Decision Codesheet. Finally, the nexus element is met, as the Board finds that the evidence is in equipoise as to whether the Veteran’s sleep apnea was caused or aggravated by his service-connected PTSD. The Board acknowledges the negative VA nexus opinion dated October 2017 that is on file. See October 2017 VA Medical Opinion Disability Benefits Questionnaire. In the October 2017 VA nexus opinion, the VA examiner opined that the Veteran’s sleep apnea is less likely than not related to his PTSD because the sleep apnea is most likely caused by obesity. Specifically, the examiner stated that he reviewed the additional risk factors for sleep apnea and “in this individual’s case, the leading cause of sleep apnea would be obesity”; however, the examiner failed to provide any basis for this conclusion. See also Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (whether a physician provides a basis for his medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits). The examiner also did not opine whether the sleep apnea was aggravated by the service-connected PTSD. The examiner also failed to reconcile a positive nexus opinion dated September 2017 that is also on file. Therefore, the Board finds this opinion entitled to minimal probative weight. On the other hand, the Board finds persuasive the September 2017 positive nexus opinion from an examiner, who opined that the Veteran’s sleep apnea is “at least as likely than not (50% or greater probability)” that the sleep apnea is associated with or due to the service-connected PTSD diagnosis. See September 2017 VA Sleep Apnea Disability Benefits Questionnaire. Because the examiner based the opinion on the Veteran’s medical history and physical examination of the Veteran, the opinion is sufficient and entitled to probative weight. Hence, after resolving reasonable doubt in the Veteran’s favor, the Board finds that the September 2017 positive nexus opinion supports the finding that the Veteran’s sleep apnea is due to the Veteran’s service-connected PTSD, at least to an evidentiary position of equipoise. See 38 C.F.R. § 3.307, 4.124a; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. Based on the foregoing, service connection for sleep apnea is granted on a secondary basis. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss The application to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers that bear directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Here, the final denial of the claim for entitlement to service connection for bilateral hearing loss was rendered in an October 2002 rating decision. The Board denied the claim in part due to finding no current bilateral hearing loss. See October 2002 rating decision. In June 2013, the Veteran sought to reopen his claim for entitlement to service connection for bilateral hearing loss. The evidence received since the final October 2002 rating decision includes medical records showing that the Veteran has a probable current hearing loss diagnosis in at least the left ear. See September 2016 VA medical records; September 2016 Veteran’s Statement. The Board finds the evidence new as it was not previously submitted to agency decision makers. The evidence is also material as it addresses the previously unestablished fact of a current disability. It is not redundant and, in the very least, when considered with the evidence of record, would trigger VA’s duty to assist by providing a medical opinion, which might “raise a reasonable possibility of substantiating the claim.” See Shade, 24 Vet. App. at 110. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded Here, there is an indication in the medical records dated September 2016 that the Veteran has probable hearing loss in at least the left ear. See September 2016 VA medical records; September 2016 Veteran’s Statement. However, the November 2017 VA examiner, who opined that hearing loss in the right and left ears are at least as likely as not related to military service, based this opinion on finding no current diagnosis of hearing loss in either ear, and furthermore, failed to address the September 2016 medical record, which indicates probable hearing loss in at least the left ear. See November 2017 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, although additional delay is regrettable, the Board finds that remand for an addendum opinion is necessary that addresses and reconciles the results for both ears in the September 2016 medical record. The matter is REMANDED for the following action: 1. Return the claims file to the November 2017 VA examiner for preparation of an addendum opinion regarding the Veteran’s bilateral hearing loss service connection claim. If the November 2017 VA examiner is not available, another qualified examiner should provide the addendum opinion. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. The examiner should review the entire claims file, specifically to include the September 2016 medical record, which indicates hearing loss in at least the left ear, and opine: (a) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hearing loss began in service, yes or no? (b) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hearing loss is caused by or otherwise related to his time in the service, specifically to include military noise exposure in service, yes or no? See November 2017 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (Veteran reported in-service noise exposure of “constant rocket attacks” and “jet engine noise”). The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of 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 (e.g., diagnosis, etiology) as it is to find against the conclusion. After answering yes or no, a complete rationale must be provided for the opinion expressed. Under Hensley v. Brown, the examiner must still assess whether the Veteran’s current bilateral hearing loss is etiologically related to service, despite the Veteran’s hearing being within normal limits under VA law at separation from service. Furthermore, in doing so, the examiner must also specifically address any threshold shifts in hearing that the Veteran may have experienced while in service. If the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) Any opinion expressed must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel