Citation Nr: 21062454 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-19 912 DATE: October 7, 2021 REMANDED Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served actively in the U.S. Army from June 1972 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in February 2013 and June 2014. The Veteran withdrew his initial hearing request in August 2017. See 38 C.F.R. § 20.704(e). In April 2019, the Board remanded this appeal for the issuance of a Statement of the Case (SOC). To the extent that the directed SOC was issued in April 2020, the Board finds that substantial compliance with its remand directives pertaining to the Veteran's claims has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that an April 2020 rating decision granted the Veteran's service connection claim for an acquired psychiatric disorder, diagnosed as dysthymic disorder with anxious distress features, and awarded a noncompensable evaluation, effective April 29, 2011. Accordingly, as the Veteran has been awarded the maximum benefit sought for such claim, the issue of service connection for an acquired psychiatric disorder, diagnosed as dysthymic disorder with anxious distress features, is no longer in appellate status before the Board. See AB v. Brown, 6 Vet. App. 35, 39-40 (1993). 1. Service connection for post-traumatic stress disorder (PTSD) is remanded. 2. Entitlement to service connection for obstructive sleep apnea is remanded. 3. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, is remanded. 4. Entitlement to service connection for erectile dysfunction is remanded. 5. Entitlement to service connection for left ear hearing loss is remanded. Unfortunately, the Veteran's service connection claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Regarding the Veteran's claim for left ear hearing loss, the Veteran contends that his current left ear hearing loss was proximately caused by hazardous military noise exposure due to his military occupational specialty (MOS) as a truck driver and motor transport, including excessive military noise exposure emanating from motor pool equipment, earth moving equipment, and artillery fire. The Board notes that the February 2013 rating decision conceded the Veteran's in-service exposure to hazardous military noise and granted service connection for hearing loss in his right ear on the grounds that his "MOS of motor transport is consistent with acoustic trauma and [his] right hearing loss has been linked to that acoustic trauma." In January 2013, the Veteran underwent a VA audiological examination, which culminated in an examination report finding that the Veteran suffered from bilateral hearing loss to the extent recognizable by VA regulations and finding it more likely than not that the Veteran's right hearing loss was causally related to his active military service, but less likely than not that the Veteran's left hearing loss was causally related to his active military service on the following grounds: (1) the Veteran's service treatment records (STRS) contain an audiogram dated May 1972 that reveals hearing loss (500 Hz)-AU; (2) the Veteran's STRs contain a separation audiogram dated June 1974 that reveals normal hearing acuity AU with improved thresholds at 500 Hz-AU; and (3) comparison of the 1972 audiogram to the 1974 audiogram reveals a standard threshold shift in the right ear, but not a standard threshold shift in the left ear. VA regulations provide that service connection may be warranted for a current hearing disability where there is sufficient evidence to demonstrate a relationship between the Veteran's military service and such hearing disability, even where the record lacks evidence of in-service audiometric testing establishing an in-service diagnosis of hearing loss for VA purposes. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In addition, VA regulations further provide that service connection may be granted for any disease diagnosed after discharge where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Moreover, when VA undertakes to provide a VA examination or obtain a VA medical opinion, it must ensure that the examination or opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that an examination report sufficiently inform the Board of a medical expert's judgment on a medical question, rely upon accurate factual premises, including the Veteran's lay statements regarding symptomatology, consider all potential theories of entitlement, and present a fully articulated, sound rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the January 2013 VA opinion finding no causal link between the Veteran's current left hearing loss and his military service, solely on the basis of the Veteran's silent STRs, contradicts applicable VA regulations and precedential case law which allow a finding of service connection if the record contains sufficient evidence to demonstrate a relationship between the Veteran's military service and his current disability. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157. Moreover, the January 2013 VA opinion also failed to specifically discuss the Veteran's contentions of in-service noise exposure, to include as due to his MOS of motor transport. See Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, for the foregoing reasons, as the January 2013 VA examination does not address whether the Veteran's current left hearing loss is related to his report of in-service hazardous noise exposure, another VA examination is necessary to determine whether the Veteran's left hearing loss is related to his active military service and thus entitled to service connection on any basis. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Finally, the evidence of record indicates that the Veteran has been awarded disability benefits from the Social Security Administration (SSA) since 2003; however, a full copy of the Veteran's SSA records has not yet been obtained or associated with his claims file, and such SSA records may contain potentially relevant information relating to his claims for PTSD, sleep apnea, diabetes, erectile dysfunction, and left ear hearing loss. Therefore, as VA must undertake adequate efforts to obtain potentially relevant SSA records in accordance with the duty to assist, remand is necessary to obtain a full copy of the Veteran's missing SSA records, including all adjudications and underlying records, and to associate such records with the Veteran's claims file so that his claims can be properly adjudicated. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992); 38 C.F.R. § 3.159(c)(2), (3). Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Contact the Social Security Administration (SSA) and obtain a complete copy of any adjudication and the records underlying any adjudication for disability benefits. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if records are not available. 3. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, to determine the nature and etiology of the Veteran's claimed left ear hearing loss. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's left ear hearing loss is due to or otherwise causally or etiologically related to his military service, to include noise exposure. (Continued on the next page) The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale 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.