Citation Nr: 21073547 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 12-07 904 DATE: December 9, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. REMANDED A compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran's OSA had its onset during the Veteran's combat service in service. CONCLUSION OF LAW The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1968 to September 1971 and from May 2002 to December 2003, including service in Vietnam, Afghanistan and Uzbekistan. The Veteran served in combat and his decoration include the Army Commendation Medal with "V" Device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in November 2017 and remanded for additional development. SERVICE CONNECTION OSA The Veteran seeks service connection for his OSA condition. In support, the Veteran reported that sleep problems began in service after fellow servicemen told him he snored loudly and stop breathing during his sleep. Further, he reported been diagnosed with OSA before separating from service. See BVA hearing transcript (October 2021). In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303(a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran served in combat and his service records shows that he suffered from sleep and breathing problems in his last deployment and such exposure is consistent with the circumstances, conditions and hardships of that service. 38 U.S.C. § 1154(b). As such, VA must presume the occurrence of the in-service injury. In addition, the medical evidence shows that the Veteran has been diagnosed as having OSA and he reports the onset of the condition during combat service. Further, the Board finds that he is both competent to report observing OSA problems during and since serving in combat and that his account of having OSA problems since that time is credible. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his OSA condition became manifest during his combat service. See Reeves. In light of his in-service, combat-related sleep disorder, the credible history of his sleep problems in and since service, and the diagnosis of OSA, the Board finds that service connection for OSA is warranted because the disability had its onset in service. REASONS FOR REMAND 2. Bilateral hearing loss and TDIU The Veteran reported at his October 2021 BVA hearing that his bilateral hearing loss condition warrants an increase rating because the condition has worsened since the last VA examination in April 2018. See BVA hearing transcript (October 2021). Here, the Veteran filed his claim of service connection for obstructive sleep apnea in July 2006, which was denied by the RO in a November 2006 rating decision. Further, his December 2011 bilateral hearing loss claim was denied by the RO in a March 2012 rating decision. The Board is also cognizant that the Veteran's heart disease is rated as 100 percent disabling effective March 25, 2019 and that entitlement to special monthly compensation based on housebound status has also been granted effective March 25, 2019. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. As such, the Veteran must be afforded another VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997; see also VAOPGCPREC 11-95 (April 7, 1995). Therefore, the Board finds that a medical evaluation is necessary to determine the Veteran's current severity and impact of his bilateral hearing loss. In addition, the Veteran reported at his October 2021 BVA hearing that his service-connected disabilities affect his employable status and has contributed to not been able to work. See BVA hearing transcript (October 2021). As such, the issue of entitlement to TDIU has been raised. The evidence shows that the Veteran is not working and in light of the decision of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009), this issue must be remanded. Additionally, the Board finds that the Veteran's TDIU claim is inextricably intertwined with the readjudication of the matters on remand. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). As there is no recent examination to determine the severity of his bilateral hearing loss and TDIU, a remand is necessary to have the Veteran examined and for an examiner to review his claims folder and provide opinions necessary to adjudicate this appeal. The matters are REMANDED for the following action: 1. Furnish the Veteran a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) and request that he complete and submit it. 2. Obtain complete VA and Non-VA treatment records of the Veteran's bilateral hearing loss. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, of the impact, extent and severity of his hearing problems, and the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay and medical evidence. 3. Schedule a VA examination for an audiological examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner to determine the current severity of the Veteran's bilateral hearing loss. The examiner should provide a full description of his bilateral hearing loss problems and report all signs and symptoms. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.