Citation Nr: 21074023 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-45 884 DATE: December 14, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for hearing loss is reopened; to this extent only, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for myopia is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for myopia is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for sleep impairment disorder is remanded. Entitlement to a compensable disability rating for respiratory disorder due to undiagnosed illness is remanded. Entitlement to a compensable disability rating for status post thyroglossal duct cyst incision is remanded. FINDINGS OF FACT 1. In an unappealed July 1997 rating decision, the RO denied the Veteran's claims for service connection for myopia and hearing loss. 2. Newly received evidence is new and material, as it relates to facts necessary to substantiate the Veteran's claims. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim for entitlement to service connection for hearing loss is reopened; to this extent only, the claim is granted. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 2. New and material evidence having been received, the claim for entitlement to service connection for myopia is reopened; to this extent only, the claim is granted. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1989 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an August 2021 hearing before the Board of Veterans' Appeals (Board). The Veteran asserts that he suffers from post-traumatic stress disorder (PTSD) as a result of his active service. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran's claim to include any psychiatric disorder. As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, the Veteran's claim cannot be limited only to that diagnosis but must rather be considered a claim for any mental disability that may be reasonably encompassed. The Board notes that in a July 1997 rating decision, the RO denied the Veteran's claims for service connection for myopia and hearing loss. The Veteran did not appeal this denial. In May 2014, the Veteran submitted an application to reopen these claims for service connection. In a November 2014 decision, the RO denied the Veteran's claims, finding that new and material evidence had not been submitted. During the Veteran's August 2021 Board hearing, he offered testimony regarding these issues. The Board finds that this evidence is new and material, as it relates to facts necessary to substantiate the Veteran's claims. Accordingly, new and material evidence having been received, the claims for service connection for myopia and hearing loss are reopened. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. The Veteran asserts that his hearing loss arose during or as a result of active service. The Board notes that he was last afforded a VA examination for this claim in October 1995. His audiometric test scores did not reveal hearing loss severe enough to qualify as a disability for VA purposes under 38 C.F.R. § 3.385, and the claim was denied in a July 1997 rating decision. In May 2014, the Veteran submitted a claim for service connection and increased ratings for multiple conditions. A November 2014 notification letter reflects that the Veteran failed to report for his scheduled VA examination. During his August 2021 Board hearing, the Veteran testified that his hearing loss had worsened significantly. Based on these facts, the Board finds the October 1995 VA examination too remote in time to serve as competent evidence as to the severity of the Veteran's hearing loss. Accordingly, this claim must be remanded so that he can be afforded a new VA examination. 2. Entitlement to service connection for myopia is remanded. The Veteran asserts that his ocular myopia arose during or as a result of active service. The Board notes that he was last afforded a VA examination for this claim in October 1995. The VA examiner noted that the Veteran experienced bilateral ocular myopia. The claim was denied in a July 1997 rating decision, as the RO found the condition was most likely congenital and unrelated to military service. In May 2014, the Veteran submitted a claim for service connection and increased ratings for multiple conditions. A November 2014 notification letter reflects that the Veteran failed to report for his scheduled VA examination. In his August 2021 Board hearing, the Veteran testified that he was exposed to dust and chemicals during service, and he believed these materials may have caused his eye condition. The Board notes that no VA examiner or medical professional has addressed the Veteran's theories of causation. Accordingly, this claim must be remanded so that he can be afforded a new VA examination. 3. Entitlement to service connection for an acquired psychiatric condition, to included PTSD, is remanded. The Veteran asserts that his PTSD arose during or as a result of active service. In May 2014, the Veteran submitted a claim for service connection and increased ratings for multiple conditions. A November 2014 notification letter reflects that the Veteran failed to report for his scheduled VA examination. In his August 2021 Board hearing, the Veteran testified that he had been diagnosed with PTSD and referred to a specialist to assist with his treatment. The Board notes that no VA examiner or medical professional has addressed the Veteran's claimed condition. Accordingly, this claim must be remanded so that he can be afforded a new VA examination, once efforts have been made to update mental health treatment records in the claims file. 4. Entitlement to service connection for sleep impairment disorder is remanded. The Veteran asserts that his sleep impairment disorder arose during or as a result of active service. In May 2014, the Veteran submitted a claim for service connection and increased ratings for multiple conditions. A November 2014 notification letter reflects that the Veteran failed to report for his scheduled VA examination. In his August 2021 Board hearing, the Veteran testified that he experienced sleep problems during service and that his service-connected cyst disability and claimed PTSD might affect his quality of sleep. The Board notes that no VA examiner or medical professional has addressed the Veteran's claimed condition. Accordingly, this claim must be remanded so that he can be afforded a new VA examination. 5. and 6. Entitlement to compensable disability ratings for respiratory disorder due to undiagnosed illness and status post thyroglossal duct cyst incision are remanded. The Veteran asserts that his service-connected respiratory and status post thyroglossal duct cyst incision disabilities are more severe than is reflected by his current noncompensable disability ratings. The Veteran was last afforded VA examinations for these conditions in June 1998 and November 2000. In May 2014, the Veteran submitted a claim for service connection and increased ratings for multiple conditions. A November 2014 notification letter reflects that the Veteran failed to report for his scheduled VA examination. In his August 2021 Board hearing, the Veteran testified that he was always congested and experienced chronic respiratory problems, and he had experienced problems with shaving and sleeping that he attributed to his cyst disability. The Board finds that the previous VA examinations are too remote in time to serve as competent evidence of the current severity of the Veteran's disabilities, and a reexamination is warranted. The matters are REMANDED for the following action: 1. The RO should send the Veteran a notice letter related to her service connection claim for a psychiatric disorder. The letter should (1) inform him of the evidence that is necessary to substantiate the claim, to include a claim for PTSD; (2) inform him about the information and evidence that VA will seek to provide; and (3) inform him about the information and evidence he is expected to provide. The notice letter should include a VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD. The Veteran should also be asked to provide sufficient information to verify any claimed in-service stressor that he has reported. Based on the information provided by the Veteran, conduct any development that may be necessary to verify any reported stressor, to include the VA examination requested below. 2. Conduct appropriate development to verify any potential exposure to hazardous dust, chemicals, or other materials during the Veteran's service. Such development should include a determination regarding the extent to which his duties and service would have exposed him to such materials. Consideration should be given to the Board's hearing testimony during this process. 3. Afford the Veteran a VA examination with an appropriate professional addressing his claimed bilateral hearing loss. The claims file must be reviewed by the examiner. The examiner must address whether it is at least as likely as not (at least an approximate balance between positive and negative evidence) that any diagnosed hearing loss, if shown, is etiologically related to service. All opinions must be supported by a rationale. The Board acknowledges complications with examination scheduling due to COVID-19 and encourages the medical facility to consider a telephone interview, or other telehealth means, if scheduling an examination is impracticable or would lead to significant delay or burden to the Veteran. 4. Afford the Veteran a new VA eye examination to ascertain the nature and etiology of any eye disabilities. The Veteran's entire claims file, including all statements submitted by the Veteran, must be made available for review by the examiner in conjunction with the examination. The examiner must review the claims file, and this fact must be noted in the accompanying medical report. Based upon a review of the claims file, the examiner is requested to provide opinions as to the following: (a) Identify all eye disabilities demonstrated during the appeal period or in proximity to the claim, even if currently resolved; (b) For any diagnosed eye disability (right or left), provide an opinion as to whether it is at least as likely as not (at least an approximate balance between positive and negative evidence) that such diagnosis was incurred in or is otherwise attributable to service, to include as due to asserted exposure to hazardous dust and chemicals. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 5. After completion of the preceding action, schedule the Veteran for a VA examination, with a psychiatrist or psychologist, regarding his claim of service connection for a psychiatric disorder including PTSD. The examiner should review the file. The examiner should also discuss the Veteran's military and medical history, and current complaints and symptoms, with the Veteran and document the Veteran's assertions in the examination report. The examiner should specifically review and comment on the Veteran's lay statements. All opinions must be supported by a rationale. (a) The examiner should identify the Veteran's current psychiatric disorder(s), including whether he meets the criteria for PTSD. If PTSD is not diagnosed, it should be explained why this is so. (b) For each identified psychiatric disorder, the examiner should provide an opinion as to whether it is at least as likely as not (at least an approximate balance between positive and negative evidence) that the disorder began during active duty or is related to any incident/event of active duty, including any wartime activity. (c) If PTSD is present, the examiner is requested to identify the stressor(s) that support the diagnosis. A complete rationale should be provided for all opinions. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 6. Provide the Veteran with an appropriate VA examination to determine the nature and etiology of any sleep apnea. The examiner should review and address the statements and testimony of the Veteran. (a) First, the examiner should identify all sleep-related conditions diagnosed during the period on appeal, even if currently resolved. (b) Next, the examiner should offer an opinion as to whether any diagnosed condition at least as likely as not (at least an approximate balance between positive and negative evidence) arose during or as a result of the Veteran's active service. If that opinion is negative, the examiner should review and consider all relevant medical records related to the Veteran's service-connected disabilities, particularly his respiratory and cyst-related disabilities, and his claimed acquired psychiatric disorder. The examiner should then offer appropriate opinions as to whether any diagnosed sleep condition was at least as likely as not caused or aggravated (worsened beyond natural progression) by any or all of his service-connected disabilities (listed in a June 2021) rating decision). In the event aggravation is found, the examiner should provide a statement of the baseline level of severity of the condition prior to such aggravation, to the extent possible. The examiner is asked to provide a statement of the reasons or rationale for all opinions provided. The examiner is asked to provide citations to specific evidence of record and any relevant medical research or literature which informs the opinions. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 7. Schedule the Veteran for a VA respiratory examination by an appropriate clinician to determine the current severity of his service-connected respiratory disorder. The most up-to-date Disability Benefits Questionnaire (DBQ) should be utilized. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 8. Schedule the Veteran for an appropriate VA examination by an appropriate clinician to determine the current severity of his service-connected status post thyroglossal duct cyst incision disability. The most up-to-date Disability Benefits Questionnaire (DBQ) should be utilized. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.