Citation Nr: A21019663 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 200520-85976 DATE: December 9, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to service-connected nose fracture, is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from May 1978 to May 1982. The rating decision on appeal was issued in February 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In February 2020, prior to filing the form, but after the rating decision on appeal was issued, the Veteran submitted private treatment records. However, under the Direct Review option, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. See 38 C.F.R. § 20.300. The Board concludes that the issues must be remanded to correct duty to assist errors that occurred prior to the February 2020 decision on appeal. See 38 C.F.R. § 20.802(a). The duty to assist errors involves VA's duty to provide a medical examination and opinion. 38 C.F.R. § 3.159(c)(4). The AOJ obtained medical opinions in January 2020 and February 2020 prior to the rating decision on appeal. However, where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the examinations and opinions are inadequate for adjudication for the reasons provided below. 1. Entitlement to service connection for OSA as secondary to service-connected nose fracture. The Veteran contends that his OSA is secondary to his service-connected nose fracture, and that he had no OSA symptoms until the surgery for his deviated septum. See Statement In Support of Claim (May 2020). The Veteran's representative contends that, if service connection cannot be granted by the Board, remand is required for a VA clinician to address the recent statements submitted by the Veteran. See Appellate Brief (September 2020). A February 2020 report of VA examination shows that the examiner diagnosed OSA and opined that the Veteran's OSA was not proximately due to or the result of service-connected nose fracture, as it "alone is not the cause of his sleep apnea." See C&P Exam (February 2020). The February 2020 VA medical opinion is inadequate because it does not consider or discuss aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 2. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is due to his duty on the flight line as security specialist, that he can remember ringing prevented him from sleeping during service, and that the VA examiner used old medical literature in support of the negative nexus opinion. See Statement In Support of Claim (May 2020). The Veteran's representative contends that, if service connection cannot be granted by the Board, remand is required for a VA clinician to address the recent statements submitted by the Veteran. See Appellate Brief (September 2020). A February 2020 report of VA examination shows that the examiner diagnosed tinnitus and conceded in-service acoustic trauma, but opined that it "is not likely that the tinnitus he experiences now is the result of military acoustic trauma." See C&P Exam (January 2020). The examiner reasoned that the Veteran's tinnitus is not caused by service as his hearing was normal at entrance and separation from service, and the Veteran could not report a specific date of onset for tinnitus. The Board finds that the February 2020 VA medical opinion is inadequate as it indicates that the examiner's rationale relied, in part, on the absence of tinnitus during the Veteran's service as the basis for the negative opinion. However, an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician other than the February 2020 clinician on the etiology of the Veteran's OSA. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The clinician must opine as to whether the Veteran's OSA is at least as likely as not (50 percent or greater probability) (1) proximately due to service-connected residuals of nose fracture; or (2) aggravated by service-connected residuals of nose fracture. Aggravation is defined as any increase in disability. Please address the Veteran's May 2020 statement that he had no OSA symptoms until the surgery for his deviated septum. Please address Dr. J.B.'s October 2019 statement that the Veteran's chronic right sided nasal obstruction can contribute to his symptoms of OSA. Provide a separate rationale for causation and aggravation opinions. 2. Obtain an addendum opinion from an appropriate clinician other than the February 2020 clinician on the etiology of the Veteran's tinnitus. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The clinician must opine as to whether the Veteran's tinnitus is at least as likely as not (50 percent or greater probability) related to his active service, to include conceded in-service acoustic trauma. Please address the Veteran's contention that he experienced ringing during service that prevented him from sleeping. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.