Citation Nr: 21076319 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-21 847 DATE: December 23, 2021 ORDER New and material evidence having been received, the claim for service connection for right wrist carpal tunnel syndrome is reopened. New and material evidence having been received, the claim for service connection for left wrist carpal tunnel syndrome is reopened. Service connection for right ear sensorineural hearing loss is granted. REMANDED The issue of the initial rating for the service-connected bilateral sensorineural hearing loss disability is remanded. Entitlement to service connection for right wrist carpal tunnel syndrome is remanded. Entitlement to service connection for left wrist carpal tunnel syndrome is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. In March 2009, the Agency of Original Jurisdiction determined that the Veteran's service treatment records did not evidence an in-service bilateral wrist injury and denied the claim. The Veteran did not submit a timely notice of disagreement, and the March 2009 rating decision is final. 2. The additional evidence received since the March 2009 rating decision is new and material. 3. Right ear sensorineural hearing loss disability originated during active service. CONCLUSIONS OF LAW 1. The March 2009 rating decision that denied the claim for bilateral carpal tunnel syndrome is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral carpal tunnel syndrome has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for right ear sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1986 to January 1999. The Veteran submitted a May 2016 Appeal to the Board of Veterans' Appeals (VA Form 9) indicating that he requested a hearing; however, the Veteran did not appear for the hearing scheduled in October 2021, and no request for postponement was received. Accordingly, the Veteran's appeal must be processed as though his hearing request has been withdrawn. 38 C.F.R. § 20.704(d). Application to Reopen Claims of Service Connection Generally, absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, 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 the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold to raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the Veteran's October 2008 claim asserts that his bilateral carpal tunnel syndrome warrants service connection. The service treatment records do not refer to carpal tunnel syndrome or any other wrist disability. VA clinical documentation dated June 2009 states that the Veteran was diagnosed with "very mild median neuropathy at the wrist bilaterally, such as can be seen in very mild carpal tunnel syndrome." New and material evidence pertaining to the issue of entitlement to service connection for a bilateral carpal tunnel syndrome was not received by VA or constructively in VA possession within one year of written notice to the Veteran of March 2009 rating decision. Therefore, the March 2009 rating decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the March 2009 rating decision includes VA treatment records, including a September 2012 VA Pain Clinic notation stating that the onset of the Veteran's bilateral carpal tunnel syndrome had occurred more than thirty (30) years prior and had worsened over time. The Board finds the September 2012 VA treatment record to be of such significance that it raises a reasonable possibility of substantiating the claim for service connection for bilateral carpal tunnel syndrome when considered with the evidence previously of record. As new and material evidence has been received, the claim of entitlement to service connection for bilateral carpal tunnel syndrome is reopened. Service Connection Right Ear Hearing Loss The Veteran contends that his right ear hearing loss is due to his exposure to hazardous military noise during service. In cases where a hearing loss disability is claimed, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38C.F.R. §3.385. 38C.F.R. §3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3Vet. App.87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38C.F.R. §3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5Vet. App.155 (1993). Where the requirements for hearing loss disability pursuant to 38C.F.R. §3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38C.F.R. §3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38C.F.R. §3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38C.F.R. §3.385 ; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. In this case, service connection for right ear hearing loss is warranted. The service treatment records do not refer to right ear hearing loss disability. Service connection has been established for left ear hearing loss secondary to in service noise exposure. The report of a January 2015 Department of Veterans Affairs (VA) audiological examination states that the Veteran reported that he served as a diesel engine mechanic while in the U.S. Marine Corps and was exposed to noise from diesel engines and weapons fire. On audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT: 35 45 55 70 70 Speech audiometry revealed speech recognition ability of 94 percent in the right ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner commented that the Veteran's hearing loss is at least as likely as not caused by or a result of an event in military service, and that the Veteran's hearing "fluctuated significantly in each ear during the service beyond normal progression." The report of an April 2015 VA audiological examination also states that the Veteran reported that he served as a diesel engine mechanic while in the U.S. Marine Corps and was exposed to noise from diesel engines and weapons fire. On audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT: 25 35 45 65 65 Speech audiometry revealed speech recognition ability of 92 percent in the right ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner commented that the Veteran's right sensorineural hearing loss is less likely as not caused by or a result of an event in military service, and that testing at the time of his separation from service "showed no significant change in hearing levels." Service treatment records dated November 1998, just prior to the Veteran's January 1999 separation from service, include a November 1998 audiogram reflecting an in-service hearing shift in both the right and left ears as compared to the Veteran's January 1986 reference audiogram upon entry into service. The Veteran has been diagnosed with right ear sensorineural hearing loss consistent with a history of in-service noise exposure. Given the findings of the January 2015 VA audiological examination report, the Board finds the evidence is in at least equipoise as to whether the Veteran's right ear hearing loss disability originated during active service. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for right ear sensorineural hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 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. REASONS FOR REMAND 1. Entitlement to service connection for carpal tunnel syndrome, right wrist, is remanded. 2. Entitlement to service connection for carpal tunnel syndrome, left wrist, is remanded. 3. Entitlement to service connection for an acquired psychiatric disability is remanded. 4. Entitlement to service connection for sleep apnea is remanded. 5. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that service connection for bilateral carpal tunnel syndrome, acquired psychiatric disability, lumbar spine disability, and sleep apnea are all warranted as each of these claimed disabilities are due to his active military service. VA clinical documentation dated June 2009 states that the Veteran was diagnosed with "very mild median neuropathy at the wrist bilaterally, such as can be seen in very mild carpal tunnel syndrome." VA clinical documentation dated September 2011 states that the Veteran was diagnosed with depressive disorder and anxiety disorder. VA clinical documentation dated February 2014 states that the Veteran was diagnosed with moderate obstructive sleep apnea. VA clinical documentation dated July 2012 and March 2013 states that the Veteran reported low back pain and was provisionally diagnosed with lumbar radiculopathy. VA clinical documentation dated September 2011 states spinal neuro-stimulator placements were implanted to treat chronic pain related to bilateral carpal tunnel syndrome. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran has not been afforded a VA examination to address the relationship, if any, between the diagnosed bilateral carpal tunnel syndrome, the acquired psychiatric disability, the sleep apnea, or the lumbar spine disability, and his active service. In addition, VA clinical documentation dated November 2013 states that the Veteran reported that he had been awarded Social Security Administration (SSA) disability benefits. VA's duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181, 187 188 (1992). Documentation of the Veteran's SSA award of disability benefits, if any, and the evidence considered by the SSA in granting or denying the Veteran's claim has not been requested for incorporation into the record. Finally, clinical documentation dated after May 2014 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, these matters are REMANDED for the following action: 1. Contact the SSA and request that documentation of the Veteran's award of disability benefits or the denial of that claim and copies of all records developed in association with the decision. 2. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated any psychiatric, wrist, spinal, audiological, or sleep disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 3. Obtain any VA treatment records not of record, to include those pertaining to treatment after May 2014. 4. Schedule the Veteran for a VA wrist examination conducted by a physician to determine the current nature of any identified wrist disability and its relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a.) Diagnose all recurrent bilateral wrist disabilities found. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent wrist disability, including bilateral carpal tunnel syndrome, onset during active service or is related to any incident of service. (c.) Opine whether it is at least as likely as not (50 percent probability or greater) that any recurrent wrist disability is due to any of the Veteran's service-connected disabilities. (d.) Opine whether it at least as likely as not (50 percent probability or greater) that any recurrent wrist disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any of the Veteran's service-connected disabilities. 5. Schedule the Veteran for a VA psychiatric examination conducted by a psychiatrist or psychologist to determine the current nature of any identified acquired psychiatric disability and its relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a.) Diagnose all recurrent acquired psychiatric disabilities found. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified acquired psychiatric disability including anxiety or depression onset during active service or is related to any incident of service, including to the Veteran's claimed bilateral wrist disabilities. (c.) Opine whether it is at least as likely as not (50 percent probability or greater) that any recurrent acquired psychiatric disability is due to any of the Veteran's service-connected disabilities. (d.) Opine whether it at least as likely as not (50 percent probability or greater) that any recurrent acquired psychiatric disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any of the Veteran's service-connected disabilities. 6. Schedule the Veteran for a VA sleep disorders examination conducted by a physician to determine the current nature of any identified sleep disability and its relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a.) Diagnose all recurrent sleep disabilities found. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent sleep disability. including sleep apnea, had its onset during active service or is related to any incident of service. (c.) Opine whether it is at least as likely as not (50 percent probability or greater) that any recurrent sleep disability is due to any of the Veteran's service-connected disabilities. (d.) Opine whether it at least as likely as not (50 percent probability or greater) that any recurrent sleep disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any of the Veteran's service-connected disabilities. 7. Schedule the Veteran for a VA spine examination conducted by a physician to determine the current nature of any identified spinal disability and its relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a.) Diagnose all recurrent spinal disabilities found. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent spinal disability including low back pain or lumbar radiculopathy onset during active service or is related to any incident of service, including the Veteran's claimed bilateral wrist disabilities. (c.) Opine whether it is at least as likely as not (50 percent probability or greater) that any recurrent spinal disability is due to any of the Veteran's service-connected disabilities. (d.) Opine whether it at least as likely as not (50 percent probability or greater) that any recurrent spinal disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any of the Veteran's service-connected disabilities. ZAHEER MASKATIA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale