Citation Nr: 18161110 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-53 947 DATE: December 28, 2018 REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The veteran served on active duty in the Marine Corps from May 1979 to November 1979, from July 1982 to April 1986, and from April 1986 to July 1995. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for hearing loss is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, VA regulations do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability as opposed to intercurrent causes. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran was afforded a VA examination in February 2014. The examiner diagnosed bilateral hearing loss. Also, the examiner determined that the Veteran’s hearing loss is less likely than not caused by or a result of an event in active service because the Veteran’s hearing was normal throughout his active service. The February 2014 examiner also notes that the Veteran’s “duties during military service consisted of heavy vehicle operator/exposed to jet noise.” In November 2015, a second negative opinion was provided which relied on the same rationale. In his November 2014 Notice of Disagreement (NOD), the Veteran stated that he was exposed to severe aircraft noise during active service. His assertion is competent and credible. The examiner erred by solely relying on the Veteran’s normal hearing examination results during active service, without consideration of the Veteran’s lay assertions. Dalton v. Nicholson, 21 Vet. App. 23, 38-39 (2007). Accordingly, an addendum opinion is needed. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran has sleep apnea as reported in the February 2000 VA treatment record. The Veteran contends that his sleep apnea began in active service because his service treatment records (STRs) indicate detailed information regarding a referral for a sleep study during active service. In the February 1995 medical board report, a medical examiner noted that the Veteran’s reactive airway disease was stable and controlled with medications. Also in February 1995, the Veteran checked “yes” for frequent trouble with sleeping on his medical history report. In an April 1995 letter of rebuttal to the February 1995 medical board report, the Veteran disagreed with the report that his reactive airway disease was stable because he often awoke from sleeping from what felt like an airway obstruction, often choking and gasping for air. In April 1995, the medical board made an addendum to the February 1995 medical report noting the Veteran’s complaints of choking or gasping for air while sleeping. The addendum noted that the Veteran would be referred to the ear, nose and throat specialty clinic for a possible sleep study. Additionally, the addendum suggested that the Veteran’s sleep complaints was caused by excessive snoring (either central or obstructive) as opposed to reactive airway disease exacerbations. The Veteran’s STRs do not indicate that the sleep study was performed before discharge from active service. In February 2000, Veteran completed a sleep study as stated in his medical treatment records which revealed severe sleep apnea. As a result, the Veteran was provided a continuous positive airway pressure (CPAP) machine for the sleep apnea. The May 2014 VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The VA examiner reasoned the Veteran’s sleep apnea is caused by morbid obesity, not an in-service incurrence. In September 2016, the VA examiner made an addendum to the May 2014 examination report. Notably, the VA examiner opined that snoring is not a specific indicator for sleep apnea and not useful for establishing a sleep apnea diagnosis. Also, the VA examiner explained that sleep apnea is characterized by recurrent collapse of the pharyngeal airway during sleep resulting in substantially reduced or complete cessation of airflow despite ongoing breathing. Similar to the May 2014 opinion, the VA examiner noted that the Veteran is morbidly obese, and adding that obesity is not related to service but caused by excess caloric intake. The VA examiner did not consider that the Veteran checked “yes” to frequent trouble with sleeping in the February 1995 medical history report. The VA examiner did not consider the Veteran’s complaints of waking up due to airway obstruction causing choking and gasping for air while sleeping as indicated in the April 1995 letter of rebuttal. Most significantly, there was no consideration that the Veteran was referred for a sleep study during active service. The VA examiner solely relied on snoring and obesity for the medical opinion for sleep apnea. Accordingly, remand for an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate clinician to address the etiology of his hearing loss. The entire claims file and a copy of this remand must be made available to the clinician for review, and the clinician must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only necessary if deemed so by the clinician. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A February 2014 VA examination report where the examiner reported Veteran was exposed to jet noise. b. A November 2014 NOD where the Veteran states that he was exposed to severe aircraft noise. The clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss began in active service, is related to an incident of service, or began within one year of separation from service. A negative opinion based solely on normal hearing at separation from service is not adequate for VA purposes. The VA clinician must provide all findings, along with a complete rationale for his or her opinion in the examination report. If requested opinion cannot be made without resort to speculation, the VA clinician must state this and provide a rationale for such conclusion. 2. Provide the Veteran’s claims file to an appropriate clinician so a supplemental medical opinion may be provided for his sleep apnea. The entire claims file and a copy of this remand must be made available to the clinician for review, and the clinician must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the clinician. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The February 1995 medical history report indicating frequent trouble with sleeping. b. The April 1995 letter of rebuttal detailing the Veteran’s complaints of choking and gasping for air while sleeping. c. The April 1995 medical board report addendum that considered reactive airway disease versus obstructive airway disease, and referred the Veteran for a sleep study. The clinician must opine as to whether the current sleep apnea is at least as likely as not (50 percent or greater probability) related to the reports of in-service injury, event, or disease. The VA examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If requested opinion cannot be made without resort to speculation, the VA examiner must state this and provide a rationale for such conclusion. 3. If upon completion of the above actions any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Willoughby, Law Clerk