Citation Nr: 21073316 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 08-08 353 DATE: December 8, 2021 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for sleep apnea. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a bilateral eye disorder. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for right ear hearing loss. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for hypothyroidism is remanded. Entitlement to service connection for a bilateral eye disorder is remanded. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a facial muscular and nerve disorder (claimed as facial muscle twitch) is remanded. FINDINGS OF FACT 1. An April 2007 rating decision, to which the Veteran was notified that month, denied service connection for a bilateral eye disorder, sleep apnea, and bilateral hearing loss; the Veteran did not perfect a timely appeal with respect to these issues in the April 2007 rating decision and no pertinent exception to finality applies. 2. The evidence received since the April 2007 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran's previously denied claims of service connection for a bilateral eye disorder, sleep apnea, and right ear hearing loss. 3. Resolving any reasonable doubt in favor of the Veteran, his right ear hearing loss is related to active service. 4. The evidence is in equipoise as to whether the Veteran's sleep apnea is related to active service. CONCLUSIONS OF LAW 1. The April 2007 rating decision that denied service connection for a bilateral eye disorder, sleep apnea, and bilateral hearing loss is final as to these issues. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.1103. 2. New and material evidence has been received to reopen the previously denied claims of service connection for a bilateral eye disorder, sleep apnea, and right ear hearing loss. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army Reserves from 1981 to 2006 with active service periods from January 1982 to May 1982, February 1991 to July 1991, and from February 1997 to November 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2007 and April 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In April 2012 and February 2017, the Board remanded the issue of entitlement to service connection for hypothyroidism to the RO for further development. At the May 2011 Board hearing, the undersigned VLJ took testimony as to the issues of service connection for a bilateral eye disorder, sleep apnea, bilateral hearing loss, and a facial muscular nerve disorder, with the caution that if the RO ultimately denied those issues, and the case is appealed, that appeal would be returned to the undersigned VLJ. See May 2011 Board hearing transcript, p 2. Thereafter, following a January 2019 Statement of the Case (SOC) that included these issues, VA received the Veteran's substantive appeal (VA Form 9) indicating that he wished to have a Board hearing. See February 2019 VA Form 9. As the Veteran had already testified as to the issues of service connection for a bilateral eye disorder, sleep apnea, bilateral hearing loss, and a facial muscular nerve disorder, VA asked the Veteran to clarify whether he still wanted a Board hearing as to those issues. See October 2021 VA notification letter. Specifically, VA asked the Veteran to fill out a form expressing whether he wanted another Board hearing and informed the Veteran that if he did not respond within 30 days of the notification letter, the Board would assume that he did not want another hearing and would proceed accordingly. Id. To date, the Veteran has not indicated whether he would like another Board hearing and, therefore, the Board will proceed with addressing these issues on the merits. Additionally, after issuance of the last SOC in January 2019, addressing, in pertinent part, service connection for a bilateral eye disorder, sleep apnea, bilateral hearing loss, and a facial muscular nerve disorder, and since issuance of the last Supplement Statement of the Case (SSOC) in March 2019, addressing service connection for hypothyroidism, new VA treatment records and examinations were added to the Veteran's claims file. A waiver of initial Agency of Original Jurisdiction (AOJ) review of this evidence from the Veteran or his representative is not of record; however, there is no prejudice to the Veteran as his claims are either granted in full or remanded. The Board notes that upon remand, the AOJ will review this new evidence in the first instance during readjudication of the claim. Finally, the Board also notes that the Veteran's representative, Disabled American Veterans (DAV), provided an Informal Hearing Presentation (IHP) in May 2020 that addressed the Veteran's hypothyroidism claim but did not address the other issues currently on appeal. Given the development action taken below, no prejudice inures to the Veteran, and his representative will have another opportunity to present evidence and argument. New and Material Evidence Rating actions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Additionally, appellate review is completed by the filing of a substantive appeal after a SOC has been furnished. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201. The filing of a substantive appeal, which consists of a properly completed VA Form 9 or correspondence containing the necessary information, is the final step the appellant needs to take to perfect an appeal. 38 C.F.R. § 20.202. The substantive appeal must be filed within sixty days from the date that the RO mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. If new and material evidence is received during an applicable appellate period following a RO decision (one year for a rating decision and sixty days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." 1. New and material evidence has been received to reopen the previously denied claims of entitlement to service connection for sleep apnea, a bilateral eye disorder, and right ear hearing loss. In the present case, the AOJ initially denied the Veteran's claims for service connection for sleep apnea, a biliteral eye disorder, and bilateral hearing loss in an April 2007 rating decision after determining that the Veteran's sleep apnea and bilateral eye disorder neither occurred in nor was caused by service and that the Veteran did not have a diagnosis of right ear hearing loss for VA purposes. Thereafter, VA received a timely NOD in July 2007 and issued a SOC in January 2008. No new and material evidence or a VA Form 9 (substantive appeal) to perfect the appeal for the issues of service connection for sleep apnea, a biliteral eye disorder, and bilateral hearing loss was received by VA within sixty days from the January 2008 SOC nor was new and material evidence received within one year of the issuance of the April 2007 rating decision. In this regard, although the Veteran submitted a VA Form 9 in March 2008, he explicitly limited his appeal to his hypothyroidism claim. Additionally, while the Veteran also submitted medical statements in March 2008 such concerned his hypothyroidism claim. Thus, the April 2007 rating decision became final as to the issues of service connection for sleep apnea, a biliteral eye disorder, and bilateral hearing loss. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104 (a), 20.1103. Evidence received since the April 2007 rating decision includes VA treatment records, VA examinations, and lay statements, including Board testimony. Specifically, at the May 2011 Board hearing, the Veteran testified that he had been diagnosed with glaucoma and vitreous detachment of both eyes and that he believed his vision problems were related to in-service chemicals from his duties during active service. See May 2011 Board hearing transcript, pp 44-48. He also underwent a VA eye conditions examination in March 2015 where he was diagnosed with glaucoma in both eyes and the examiner provided a negative nexus opinion. The Veteran also underwent hearing loss and tinnitus VA examinations in April 2015 and January 2021 that provided audiometric data for his right ear. Regarding the Veteran's sleep apnea, a January 2013 VA treatment record reflects that the Veteran had a diagnosis of severe sleep apnea while he underwent a VA sleep apnea examination in January 2019 and submitted a private sleep apnea opinion in February 2019. This above evidence is new as it was not of record in April 2007 and material as it relates to the unestablished facts of whether the Veteran has current diagnoses and whether the Veteran's disorders had an onset in or are otherwise related to his service. Accordingly, the Board finds that new and material evidence has been received to reopen the previously denied claims of service connection for sleep apnea, a bilateral eye disorder, and right ear hearing loss. Service Connection Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active-duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active-duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in- service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for right ear hearing loss The Veteran contends that he developed right ear hearing loss as a result of in-service noise exposure. Impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. 38 C.F.R. § 3.385. The failure to meet these criteria at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A veteran "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service." Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see 38 C.F.R. § 3.303(d). In the present case, the Veteran has a diagnosis of right ear hearing loss for VA purposes under 38 C.F.R. § 3.385 as shown by audiometric data from the January 2021 hearing loss and tinnitus VA examination. Thus, a current disability is established. Next, the Board finds, and the RO has already conceded, that the Veteran was exposed to excessive noise while performing his duties during service. Specifically, the April 2015 rating decision that granted service connection for left ear hearing loss notes that the Veteran's military occupational specialty (MOS) of a Combat Engineer is consistent with acoustic trauma while a January 2006 medical record reflects the Veteran's report of in-service acoustic trauma from guns, explosions, and engines. Moreover, the Veteran is competent to report in-service noise exposure and his assertions are consistent with the type and circumstances of his military service. Therefore, the remaining inquiry is whether the Veteran's current right ear hearing loss is related to his in-service noise exposure. In this regard, the Veteran has provided competent and credibly lay statements concerning the onset and continuity of his symptoms as he has reported experiencing right ear hearing loss in and since service. For example, the January 2021 VA hearing loss and tinnitus examination reflects the Veteran's report that he started have difficulty with his hearing in 1991 to 1992, which the Board notes includes his period of active service from February 1991 to July 1991. The Board also notes that the Veteran is competent to report his hearing loss symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, as the Veteran's competent statements concerning his hearing loss are internally consistent, the Board has no reason to doubt the credibility of these statements and they are given great probative weight. The medical evidence also reflects a relationship between the Veteran's reports of hearing loss and his active service. For instance, a January 2006 medical record reflects that the Veteran was assessed with noise induced hearing loss and that he reported a high level of environmental noise and acoustic trauma during service. In April 2011, a private physician opined that it is at least as likely as not that the Veteran's bilateral hearing loss is a direct result of his active service. The private physician did not provide rationale for this conclusion but in an associated medical statement, with the same date, the private physician indicated that he reviewed the Veteran's claims file, including Reserve service audiology examinations, and statements from the Veteran that he was exposed to extreme noises during service. Likewise, the April 2015 VA examiner opined that it is at least as likely as not that the Veteran's right ear hearing issues were caused by or a result of service. The VA examiner noted that the Veteran's service treatment records (STRs) were unavailable for review and that his opinion was based upon the assumption that the Veteran's hearing was normal upon entry into military service. The examiner based his opinion on the Veteran's reported in-service noise exposure, denial of post-service occupational noise exposure, and the May 1998 VA audiologic evaluation reflecting mild conductive hearing loss in the left ear. The examiner concluded that it was at least as likely as not that the Veteran sustained auditory system damage while serving in the military in both the right and left ear. Regarding the above April 2015 VA opinion, the Board acknowledges that at various points during the Veteran's active and Reserve service, the Veteran's STRs and examinations reflect left ear hearing loss, and that a May 1990 audiological record reflects an assessment of mild bilateral hearing loss. However, the Board finds that the presumption of soundness attaches to the Veteran's right ear hearing for his periods of active service. The Board notes that VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The Court has explained that if the degree of hearing loss noted on entrance medical examination does not meet VA's definition of a disability for hearing loss under 38 C.F.R. § 3.385, then the presumption of soundness applies. McKinney v. McDonald, 28 Vet. App. 15, 23 (2016). Here, the Veteran's December 1981, January 1991, June 1991, September 1996, and June 2001, VA Report of Medical Examinations are silent for right ear hearing loss and the audiometric data from these examinations does not reflect right ear hearing loss for VA compensation purposes. Moreover, the Board does not find that there is clear and unmistakable (i.e., undebatable) evidence that the Veteran had a right ear hearing related disability that preexisted a period of active service given that right ear hearing loss was not noted, or recorded through audiological data, upon entrance examinations. Therefore, the presumption of soundness attaches to his right ear hearing loss. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (holding that where the presumption of soundness is not rebutted, a claim for service connection based on aggravation is converted into a claim for service connection based on service incurrence). Accordingly, given the Veteran's competent and credible lay statements attesting to continuity of symptoms for his right ear hearing loss, the positive nexus opinions of record, and the lack of any negative nexus opinions regarding his right ear hearing loss in the claims file, the Board finds that the evidence is at least in equipoise, requiring that reasonable doubt be resolved in his favor. See 38 U.S.C. § 5107(b). Therefore, the Board finds that entitlement to service connection for right ear hearing loss is warranted. 3. Entitlement to service connection for sleep apnea The Veteran contends that his current sleep apnea is related to his service. Specifically, he contends that he began experiencing symptoms consistent with sleep apnea during his active service, including loud and abnormal snoring while sleeping and fatigue. See May 2015 Statement in Support of Claim. Upon review of the record, the Board finds that the evidence is in equipoise as to whether the Veteran's sleep apnea is related to his active service. First, the Veteran has a current diagnosis of sleep apnea. See January 2013 VA treatment record (reflecting that the Veteran's polysomnography results show snoring associated with severe obstructive sleep apnea syndrome). Therefore, the remaining issues are whether the Veteran had an in-service event, injury, or incurrence, and whether such is related to his current sleep apnea diagnosis. Although the Veteran's STRs are silent as to any complaints, treatment, or diagnoses of sleep apnea, he has consistently provided lay statements that he experienced symptoms of sleep apnea in service. Specifically, he reported that he first became aware of nighttime breathing difficulties during his deployment in 1991 as his fellow servicemen would frequently tell him that he had loud and abnormal snoring. See May 2015 Statement in Support of Claim. The Veteran also explained that he was fatigued during that deployment and ever since had difficulties with breathing and sleeping at night. See id. During the January 2019 VA sleep apnea examination, he again reported that fellow servicemen told him he was a heavy snorer and at times would stop breathing during sleep and that during his in-service hospital admission for pneumonia, a nurse mentioned to him that he had heavy snoring. He further explained that while he had these symptoms in and since service, he did not seek treatment for them because he did not know how to approach his sleep issues. See January 2019 VA sleep apnea examination. The February 2019 private sleep apnea evaluation also reflects that the Veteran believed his poor sleep quality and fatigue were due to his duty scheduled and that he had no knowledge of sleep apnea when he was serving on active duty. The Board notes that the Veteran is competent to describe symptoms that he experienced in service, or at any time after service, when the symptoms he experienced were perceived directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). Moreover, the Board finds that the Veteran's lay statements regarding in-service sleep apnea symptoms are credible as they are generally internally consistent and generally consistent with other lay evidence. In this regard, in March 2017, VA received a statement from a fellow serviceman who was deployed to Bosnia with the Veteran in 1997. The fellow serviceman explained that during this deployment, he observed on several occasions that the Veteran would easily fall asleep and snore while sitting down. Additionally, the evidence reflects that the Veteran's spouse accompanied him to the January 2019 VA sleep apnea examination and reported that ever since she married the Veteran (in 1985), he was a heavy snorer with episodes of stopped breathing. The Board notes that lay statements, even those regarding events that occurred years prior to submission, can be considered credible evidence if describing events personally witnessed by the statements' authors. Layno v. Brown, 6 Vet. App. 465 (1994). As such, the Board finds that the above buddy statements lend credibility to the Veteran's claims of in-service symptoms impacting his sleep. Accordingly, based on the competent and credible lay statements of record describing symptoms of interrupted sleep, snoring, and apneic episodes during periods of active service, the second requirement for service connection, which is evidence of an in-service incurrence, injury, or disease, is established. Next, in support of the Veteran's claim that his currently diagnosed sleep apnea is related to the in-service sleep symptoms that he experienced, the Veteran submitted a private medical evaluation by a sleep medicine specialist dated February 2019. After reviewing the Veteran's medical records and undergoing a sleep apnea consultation, the private sleep medicine specialist opined that it is more likely than not that the Veteran's sleep apnea began while he was on active duty based upon the specific characteristics of the Veteran's severe sleep apnea, as documented in his sleep study, and his medical and sleep history. The private sleep medicine specialist explained that the Veteran was diagnosed with severe obstructive sleep apnea based upon results from a January 2013 polysomnographic split night sleep study and that sleep apnea does not occur suddenly, but slowly develops and worsens. Specifically, she explained that sleep apnea begins with mild intermittent snoring and gradually worsens with more disruptive and persistent snoring, more frequent breathing pauses, more oxygen desaturation episodes, cardiac involvement, and more sleep impairment. She further noted that it takes many years for sleep apnea to progress from mild to moderate to severe apnea. The sleep medicine specialist found that the Veteran had symptoms of sleep apnea for years before his doctor recognized the symptoms of untreated sleep apnea and ordered a sleep study evaluation for him and explained that it is not unusual for an individual to have symptoms of sleep apnea years before a primary care doctor refers the individual for a sleep evaluation. She noted that the Veteran had no sleep complaints and did not snore prior to entering service and that during active service was told by others that he had begun to snore disruptively and was observed to stop breathing during sleep. She explained that disruptive snoring, observed breathing difficulties, poor sleep quality, and daytime sleepiness are all symptoms of obstructive sleep apnea. As such, she opined that his symptoms of sleep apnea began during his active service and persisted and worsened over the years. She acknowledged that the Veteran did not have a sleep study while on active duty but found that there was other medical evidence of his underlying, undiagnosed, and untreated sleep apnea while on active duty. In this regard, she explained that he developed hypertension, which is a medical disorder and abnormality that is known to be caused by and exacerbated by untreated sleep apnea. In support of the Veteran's claim, his private treating physician also submitted a statement in August 2006 that the Veteran had a history of sleep apnea. See August 2006 Statement in Support of Claim. Likewise, in an April 2011 evaluation, another private physician indicated that he performed a through history and physical examination of the Veteran and that the Veteran had a history of sleep apnea. On the other hand, in January 2019, a VA clinician opined that it is less likely than not that the Veteran's sleep apnea was incurred in or caused by active service. The clinician explained that although the Veteran claimed to have a long-standing history of sleep disturbances, when a medical condition becomes so recurrent, chronic, or disabling, complaints usually abound and medical documentation about such a problem is usually evident, which has not been the case for the Veteran. In this regard, the VA clinician noted that it was not until January 2013 when the Veteran was confirmed as having sleep apnea and that sleep apnea was mentioned for the first time in August 2006, nine years after his active service. He explained that although the Veteran provided lay statements of ongoing symptoms, personal statements alone, without any written medical evidence of recurrence, chronicity, disability, or aggravation are questionable or unsubstantiated proof from a strict medical standpoint. As such, the clinician explained that the objective sequence of events and medical documentation during the Veteran's service do not quite convincingly suggest that the Veteran's sleep apnea symptomatology, which the Veteran claims developed during his time in service and continually affected him since service, is due to or related to service. The VA clinician also provided citations to medical sources addressing sleep apnea. In light of the above private positive nexus opinion, negative nexus VA opinion, and the Veteran's competent lay statements indicating that he experienced symptoms since service that were later diagnosed as sleep apnea, the Board finds that the evidence is in equipoise as to whether the Veteran's sleep apnea is related to his active service. In this regard, the Board assigns probative weight to both medical opinions of record as they reflect consideration of the Veteran's statements and medical records and include rationale for the conclusions reached. In these circumstances, a remand for another VA opinion on this issue could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's sleep apnea is related to active service. Therefore, service connection for sleep apnea is granted. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for hypothyroidism Unfortunately, the Board finds that another remand is necessary for this claim as there has not been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the February 2017 Board remand directives requested that on remand, a VA examiner opine whether the Veteran's hypothyroidism clearly and unmistakably pre-existed his active service from February 1991 to July 1991 and whether his hypothyroidism clearly and unmistakably pre-existed his active service from February 1997 to November 1997. The December 2018 VA examiner, however, opined that it was "less likely than not that the Veteran's surgically induced hypothyroidism clearly and unmistakably pre-existed his entry into his period of service from 02/1991 to 07/1991" and that it is "less likely than not (less than 50[percent] probability) that this [V]eteran clearly and unmistakably suffered from hypothyroidism prior to his period of active duty from 02/1997 to 11/1997." Based on these opinions, it appears the VA examiner conflated the term "clear and unmistakable" with the term "at least as likely as not," which require different standards. In this regard, clear and unmistakable evidence leads to a conclusion that is undebatable while the term "at least as likely as not" means 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. Therefore, a remand is warranted for an addendum VA opinion that uses that correct legal standards. Additionally, although the December 2018 VA examiner explained that the Veteran has surgically induced hypothyroidism from undergoing a total thyroidectomy in September 2007, the medical evidence of record reflects assessments of hypothyroidism prior to 2007. For example, an April 2004 medical record reflects a notation for hypothyroidism while a January 2006 medical record includes that the Veteran presented with a history of hypothyroidism and possible thyroiditis and was to be evaluated for fitness for duty and mobilization/deployment. Consequently, on remand, a VA examiner should clarify, if possible, whether the Veteran's hypothyroidism was present prior to his thyroidectomy. Moreover, although the December 2018 VA examiner addressed post-service complaints of swallowing difficulties and voice changes, the examiner failed to address the in-service October 1997 STR reflecting that the Veteran's pneumonia resolved but that the Veteran reported difficulty swallowing and may need a followup. Finally, as the February 2019 private sleep apnea evaluation discusses a relationship between thyroid abnormality and sleep apnea, on remand, a VA examiner should also provide an opinion as to whether the Veteran's hypothyroidism is secondary to his now service-connected sleep apnea. 2. Entitlement to service connection for a bilateral eye disorder Unfortunately, the Board also finds that a remand is warranted for the Veteran's bilateral eye disorder claim as the only VA examination and opinion of record, in March 2015, is inadequate. In this regard, the March 2015 VA examiner opined that the Veteran's diagnosed glaucoma is less likely than not incurred in or caused by service as there is no known history of trauma to the eyes. The examiner also indicated that he could not resolve this issue without resorting to mere speculation and noted that no STRs were available for him to review in conjunction with his opinion and examination. As the examiner did not review the Veteran's entire medical records, including his STRs, prior to rendering an opinion, a remand is warranted for another VA examination. The Board notes that once VA provides an examination, it must be adequate, or VA must notify the Veteran as to why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, as the Veteran contends that his bilateral eye disorder is related to in-service exposure to chemicals, to include pesticides, on remand a VA examiner should also consider this contention in rendering an opinion. Additionally, an April 2009 VA treatment record reflects that the Veteran underwent an outside optometry consultation and scanned medical documents related to that consultation are available in Vista Imaging. The Board, however, does not have access to this system to view the scanned medical documents. Accordingly, on remand, the RO should obtain these records and associate them with the claims file for evidentiary consideration. 3. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a facial nerve and muscle disorder At the May 2011 Board hearing, the Veteran testified that he took medication for facial twitching from Dr. M.M. See May 2011 Board hearing transcript, p 29. However, the record does not appear to contain complete records from Dr. M.M., nor does it appear that the RO sufficiently attempted to obtain these outstanding private treatment records. In this regard, although the Veteran's claims file contains some records from Dr. M.M., a March 2008 medical statement from Dr. M.M. reflects that the Veteran had been under his professional care since May 1986. Moreover, in September 2006, VA received the Veteran's VA Form 21-4142, authorizing VA to obtain medical treatment records from Dr. M.M. from July 1991 to present. However, the claims file does not contain records beginning from 1991 nor for several years thereafter. Accordingly, as any outstanding private treatment records may be relevant to the Veteran's claim, a remand is warranted to attempt to obtain these identified treatment records. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records, to include the April 2009 optometry consultation documents that are available in Vista Imaging. The last VA treatment of record is dated March 2021. 2. Provide the Veteran an opportunity to identify and/or submit any additional private treatment records related to his claims, to specifically include treatment from Dr. M.M. since May 1986 concerning thyroid ultrasound and lab treatment records as well as treatment records reflecting complaints, treatment, and diagnoses relating to a facial twitch. In September 2006, VA received the Veteran's VA Form 21-4142, authorizing VA to obtain medical treatment records from Dr. M.M. from July 1991 to present. Provide the Veteran the opportunity to submit new releases for these records. After obtaining the necessary authorization from the Veteran, all outstanding, identified records should be obtained. 3. Then, obtain an addendum opinion from an appropriate VA medical professional to address the Veteran's service connection claim for hypothyroidism. The claims file, to include a copy of this Remand, must be available to and be thoroughly reviewed by the VA examiner. The examiner is asked to respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypothyroidism and enlarged thyroid had an onset in or is otherwise related to the Veteran's period of active service from January 1982 to May 1982? (b) Is there clear and unmistakable evidence (i.e., undebatable evidence) that the Veteran's hypothyroidism and enlarged thyroid pre-existed his entry into his period of active duty from February 1991 to July 1991? (c) If there is clear and unmistakable evidence that the Veteran's disorder pre-existed his period of active service from February 1991 to July 1991, is there clear and unmistakable evidence (i.e., undebatable evidence) that the disorder was NOT aggravated beyond its natural progression during this period of active duty? (d) If there is NOT clear and unmistakable evidence that the current disorder pre-existed his period of active service from February 1991 to July 1991, is it at least as likely as not (50 percent probability or greater) that the disorder had an onset in or is otherwise related to this period of active service? (e) Is there clear and unmistakable evidence (i.e., undebatable evidence) that the Veteran's hypothyroidism and enlarged thyroid pre-existed his entry into active service from February 1997 to November 1997? In providing this opinion, discuss the Veteran's treatment with Dr. M.M. for thyromegaly since January 1996, to include the March 2008 correspondence from Dr. M.M. that thyroid assay labs were done in January 1997 with abnormal findings. (f) If there is clear and unmistakable evidence that the Veteran's disorder pre-existed his period of active service from February 1997 to November 1997, is there clear and unmistakable evidence (i.e., undebatable evidence) that the disorder was NOT aggravated beyond its natural progression during this period of active service? The examiner should discuss the Veteran's treatment with Dr. M.M for thyromegaly since January 1996 AND the April 2011 private physician opinion that the Veteran's claims file documents swallowing problems in October 1997 while the Veteran was in active service and that this was probably the first time the Veteran was having mechanical problems with his large multinodular goiter. (g) If there is NOT clear and unmistakable evidence that the current disorder pre-existed his period of active service from February 1997 to November 1997, is it at least as likely as not (50 percent probability or greater) that the disorder had an onset in or is otherwise related to this period of active service, to include the October 1997 STR reflecting difficulty swallowing? The examiner should also address the April 2011 private physician opinion that the Veteran's claims file documents swallowing problems in October 1997 while the Veteran was in the service and that this was probably the first time the Veteran was having mechanical problems with his large multinodular goiter. (h) If the examiner concludes that the Veteran's hypothyroidism occurred following his thyroidectomy in 2007, how does that reconcile with the evidence indicating its onset occurred prior to 2007? See August 1999 MRI of the sella pre and post contrast (reflecting a history of hormonal abnormality); June 2001 Report of Medical History (reflecting that Dr. M.M.'s sonogram showed enlarged thyroid and goiter diagnosed three years ago); April 2004 physical profile (reflecting a medical condition of hypothyroidism); November 2005 medical record (reflecting the Veteran is currently under physician care for hypothyroidism); November 2005 medical record (reflecting no profile for thyroid that is checked once a year); January 2006 medical record (assessing the Veteran with hypothyroidism noting based on his history he has hypothyroidism); April 2016 VA opinion (finding that the Veteran's current disorder pre-existed his second period of active duty); and April 2006 private medical record (reflecting that possibly the goiter is now overactive with subclinical hypothyroidism given the low TSH level). In answering the above questions, the VA examiner is also asked to consider the Veteran's lay statements regarding the progression of the disorder and comment on whether the Veteran's statements make sense from a medical point of view. The examiner is advised that the term "clear and unmistakable" is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. The term "at least as likely as not" does not means "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. (i) The examiner is also asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypothyroidism is (1) caused by OR (2) aggravated by his service-connected sleep apnea. The examiner should provide an opinion for BOTH causation and aggravation. If aggravation is found, the examiner should state whether there is a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described. In providing this secondary service connection opinion, the VA examiner should consider and address as appropriate the February 2019 private sleep apnea evaluation noting an association between sleep apnea and thyroid disorders. A complete rationale should be provided for all opinions expressed while a discussion of the relevant facts and medical principles would be of considerable assistance to the Board. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. Schedule the Veteran for a VA eye examination to address his claim for service connection for a bilateral eye disorder. The claims file, to include a copy of this Remand, should be made available to and be thoroughly reviewed by the VA examiner. The examiner should elicit a full medical history from the Veteran concerning his vision and all indicated studies and symptoms should be reported. The examiner is asked to respond to the following: (a) Identify/diagnose all eye disorders for the appeal period. The evidence reflects that the Veteran has a diagnosis of glaucoma in both eyes, that he was diagnosed with vitreous detachment in 2006, and that based upon an April 2011 private medical evaluation, his past medical history includes vision loss secondary to a detached retina. (b) For each diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such had an onset in or is otherwise related to a period of active service, to include any in-service exposure to chemicals and pesticides? In providing the above opinion, the VA examiner should consider and address the Veteran's lay statements that he believes his vision problems are related to in-service exposure to chemicals, fumes, and pesticides. The examiner should provide a complete rationale for all opinions expressed. A discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.