Citation Nr: 21004549 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-38 684 DATE: January 27, 2021 REMANDED Entitlement to service connection for a vertigo disability is remanded. Entitlement to service connection for a sleep apnea disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1956 to September 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a hearing before the undersigned Veterans Law Judge in December 2020. A transcript of the hearing is of record. 1. Entitlement to service connection for a vertigo disability is remanded. The Veteran contends that his vertigo is related to his active duty service. The Veteran had an examination for his vertigo condition in August 2017. The examiner opined that it was less likely than not that the Veteran’s vertigo was proximately due to or the result of his service-connected hearing loss. The examiner stated that the Veteran was diagnosed with Benign Positional Vertigo that is unrelated to hearing loss per assessment on January 10, 2016. The examiner further stated that this is consistent with the Veteran’s diagnosis of vertigo upon examination. The Board finds the August 2017 examiner’s opinion to be inadequate. The examiner did not address whether the Veteran’s service-connected disabilities aggravated his vertigo condition. An opinion that something “is not related to” or “is not due to” does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Furthermore, it is not clear whether the examiner fully considered the Veteran’s competent lay statements of record. The Veteran has stated that his vertigo began during his active duty service after falling and having a concussion. The examiner did not clearly address the Veteran’s lay statements and did not opine whether the Veteran’s current vertigo condition was directly related to his active duty service. Accordingly, the Board finds that a new medical opinion is necessary. 2. Entitlement to service connection for a sleep apnea disability is remanded. The Veteran contends that he has a current sleep apnea disability that is related to his active duty service. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). These elements are satisfied regarding the claim of entitlement to service connection for a claimed sleep apnea disability. There is competent evidence of record that the Veteran has a current sleep apnea disability based on private treatment records. There is evidence that the Veteran had a concussion in service and exhibited sleep apnea symptoms soon after separation from service based on his lay statements as well as a deviated septum based on his separation examination. Regarding the third and fourth elements, there is an indication that a sleep apnea could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain an addendum medical opinion from a qualified VA medical professional to determine whether the Veteran’s current vertigo condition is related to his military service and/or secondary to his service-connected disabilities to include his service-connected hearing loss. The record must be made available to and reviewed by the VA examiner. Following a review of the entire record, the examiner is asked to address the following: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s vertigo condition had its onset in, or is otherwise related to his period of active duty service? In answering this question, the examiner should address the Veteran’s competent lay statements of record regarding the onset of his vertigo symptoms after falling and hitting the back of his head in service. See VBMS, document labeled Correspondence, receipt date 05/23/2018; see also VBMS, document labeled Hearing Transcript, receipt date 12/14/2020. b) Notwithstanding the above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s vertigo condition was caused by his service-connected disabilities, to include his hearing loss? c) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran’s vertigo condition is aggravated by his service-connected disabilities, to include his hearing loss? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of a documented treatment or diagnosis in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Obtain an opinion to address the etiology of the Veteran’s claimed sleep apnea disability. The record must be made available to and reviewed by the VA examiner. Following a review of the entire record, the examiner is asked to address the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea condition had its onset in, or is otherwise related to his period of active duty service? In answering this question, the examiner should address the Veteran’s competent lay statements of record regarding having a concussion in service, as well as the onset of his sleep apnea symptoms. See VBMS, document labeled Correspondence, receipt date 05/23/2018; see also VBMS, document labeled Hearing Transcript, receipt date 12/14/2020. Additionally, the examiner should address the Veteran’s septal deviation in service in rendering an opinion. See VBMS, document labeled STR - Medical, receipt date 04/08/2014, page 10. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. Note that the absence of documented medical treatment or diagnosis in the service treatment records cannot serve as the sole basis for a negative opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.