Citation Nr: 21075868 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 20-21 044 DATE: December 21, 2021 REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a sleep apnea is remanded. Entitlement to service connection for a tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1990 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January and July 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a DRO hearing. An informal conference report is of the record. The Veteran offered testimony at a Board hearing before the undersigned Veterans Law Judge in November 2021. This decision is being prepared under the Board's "one-touch" program, and a transcript of the Veteran's hearing is not yet available. Such a transcript will be added to the Veteran's file under the normal course of business. The Board notes that additional evidence has been associated with the records since the March 2020 statement of the case. However, the Board is remanding the claims for additional development and the evidence will be considered on remand. 1. Entitlement to service connection for a tinnitus. The Veteran contends that his tinnitus is due to his in-service noise exposure while working as a medical specialist in the infantry division. In this regard, he stated that the ringing started due to his exposure to noise from tanks, black hawk helicopters, grenades, and machine gunfire. See February 2020 statement. He further stated that his tinnitus sounds like locusts or bees buzzing all the time. The Veteran was afforded a VA examination regarding the etiology of his tinnitus in July 2018. At such time, the Veteran reported his history of noise exposure and that he had constant buzzing and it was annoying. He further reported that the buzzing was loud at night and it was hard for him to concentrate. The examiner concluded that it was less likely than not that the Veteran's tinnitus was due to his military service. As rationale, the examiner explained that, the onset of tinnitus was reported by the Veteran after he separated from service. The examiner further explained that the Veteran's service treatment records were negative for tinnitus and current literature did not support late onset noise-induced tinnitus. However, it does not appear that the VA examiner considered the Veteran's reports of in-service noise exposure and symptoms of tinnitus that he noticed during service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Therefore, an addendum opinion is necessary to decide the claim. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a sleep apnea. The Veteran contends that his currently diagnosed neck disorder order is due to his military service. In this regard, the Veteran reported that he was involved in an accident during training in which his vehicle ran over a huge rock. He was in the turret at the time and fell through the hatch onto the floor of the vehicle, which was the beginning of his neck pain. He also reported that he was treated with physical therapy in the early 2000's; however, the facility was no longer open, and he could not get those records. Regarding the sleep apnea claim, the Board notes that the Veteran's treatment records show that he has been diagnosed with sleep apnea; however, a sleep study is not of the record. Any outstanding private treatment records should be obtained on remand. The Board also notes that the Veteran maintains that he experienced fatigue and snored during service. He adds that he had weight management concerns as well. The Board finds that the low threshold of the McLendon standard has been met, and that a remand is necessary to obtain VA opinions to determine the nature and etiology of the Veteran's neck disorder and sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following actions: 1. The Veteran should be given an opportunity to identify any outstanding private treatment records relevant to the claims on appeal, to include records related to his sleep study report. After obtaining any necessary authorization from the Veteran, all outstanding relevant records from all indicated sources should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Return the file, including a copy of this remand, to the July 2018 VA examiner for an addendum opinion as to the nature and etiology of the Veteran's claimed tinnitus. If the July 2018 VA examiner is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should review the record and then address the following inquiry: (A) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's tinnitus had its onset in, or is otherwise related to any injury or event, during service, to include his work as a medical specialist? The examiner must address the Veteran's statements and history regarding the onset and continuity of the claimed tinnitus. In offering an opinion, the examiner must acknowledge that the Veteran is competent to report his in-service symptoms and the continuity of his symptomatology he perceives since service. The rationale for any opinion should be provided. The examiner is advised that the sole basis for a negative opinion cannot be the fact that the Veteran's service treatment records are negative for complaints, treatment, or diagnoses referable to the claimed disorder. 3. Schedule the Veteran for an appropriate VA examination in order to determine the current nature and etiology of his neck disorder and sleep apnea. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea had its onset in or is otherwise related to the Veteran's military service. (B) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's neck disorder had its onset in or is otherwise related to the Veteran's military service. The examiner must address the Veteran's statements and history regarding the onset and continuity of the claimed disorders. In offering an opinion, the examiner must acknowledge that the Veteran is competent to his in-service symptoms and the continuity of his symptomatology he perceives since service. The rationale for any opinion should be provided. The examiner is advised that the sole basis for a negative opinion cannot be the fact that the Veteran's service treatment records are negative for complaints, treatment, or diagnoses referable to the claimed disorders. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.