Citation Nr: 21010019 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-62 770 DATE: February 23, 2021 REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to an effective date earlier than April 29, 2015 for the award of a 100 percent rating for schizophreniform disorder is remanded. Entitlement to an effective date earlier than April 29, 2015 for the award of basic eligibility for education benefits under Chapter 35, Title 38, United States Code (Dependents’ Educational Assistance (DEA)) is remanded. REASONS FOR REMAND The Veteran had active service from April 1992 to October 1993. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board denied the Veteran’s claims of entitlement to service connection for sleep apnea and entitlement to an effective date earlier than April 29, 2015 for the award of a 100 percent rating for schizophreniform disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) the parties agreed that the Board erred in denying the claims. In a September 2020 order, the Court granted the parties’ JMR vacating the September 2019 decision and remanding the claims to the Board for further adjudication. While the Veteran initially appealed the issue of entitlement to service connection for a right hand injury, that claim was granted in an October 2020 rating decision. Accordingly, that issue has been resolved and is not presently on appeal before the Board. REFERRED As noted in the September 2020 JMR, in an April 2019 correspondence, the representative asserted that there was clear and unmistakable error (CUE) in the September 1995 rating decision that continued the Veteran’s 50 percent rating for his schizophreniform disorder. The CUE motion has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it must be referred to the AOJ for appropriate action. 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for sleep apnea is remanded. 4. Entitlement to an effective date earlier than April 29, 2015 for the award of a 100 percent rating for schizophreniform disorder is remanded. 5. Entitlement to an effective date earlier than April 29, 2015 for the award of basic eligibility for DEA is remanded. The evidence indicates there may be outstanding relevant VA treatment records. A December 19, 2019 VA sleep clinic record indicates that the Veteran was to return for a follow up appointment in June 2020. VA treatment records subsequent to December 19, 2019 have not been associated with the claims file. A VA record from August 1, 2018 indicates that non-VA records from May 25, 2018 and May 26, 2018 had been scanned. Likewise, a November 20, 2018 VA record indicates that an administrative note from November 20, 2018 had been scanned. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. Additionally, the claims file contains a June 16, 2020 file entitled “Medical Treatment Records – Government,” which has been damaged and cannot be opened. A Veterans Benefits Management Service (VBMS) note by the AOJ from the same date indicates that the electronic file contained the Veteran’s current treatment records. On remand, those records should be re-uploaded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. In pertinent part, the September 2019 remand requested opinions addressing whether the Veteran’s hearing loss and tinnitus were related to active service or aggravated by his service-connected schizophreniform disorder, to include any medication taken therefore. While addendum opinions were obtained in February 2020, August 2020, and October 2020, the opinions are not fully responsive to the remand directives. Regarding direct service connection, the examiner's rationale in support is insufficient as it relies solely on the absence of hearing loss at separation. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Additionally, the examiner did not, as requested, address the treatise evidence of record. Regarding secondary service connection, the examiner’s rationale only addressed whether aggravation had occurred during service. Thus, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the Veteran’s sleep apnea claim, the September 2020 JMR found that the Board erred in not obtaining complete records related to the Veteran’s April 2007 sleep study. On remand, reasonable efforts should be made to obtain all records related to the Veteran’s April 2007 sleep study. Additionally, VA treatment records associated with the claims file subsequent to the vacated September 2019 Board decision indicate that the Veteran has been diagnosed with obstructive sleep apnea (OSA). The Veteran asserts that his OSA is related to service or his service-connected schizophreniform disorder. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether his OSA is related to service, including his reports of restless sleep and waking up screaming, and/or his service-connected schizophreniform disorder. As noted above, in an April 2019 correspondence, the representative asserted that there was CUE in the September 1995 rating decision that continued the Veteran’s 50 percent rating for his schizophreniform disorder. As the outcome of the Veteran's CUE motion could impact the outcome of the claim for an earlier effective date for the award of his 100 percent rating for his schizophreniform disorder, the issues are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, the earlier effective date claim must be deferred pending the AOJ's adjudication of the Veteran's CUE motion. Finally, because a decision on the referred and remanded claims could significantly impact a decision on the issue of entitlement to an effective date earlier than April 29, 2015 for the award of basic eligibility for DEA, the issues are inextricably intertwined. Id. Thus, a remand of that claim is also required. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified as well as all records pertaining to his April 2007 sleep study at Southern Maryland Hospital Laboratory for Sleep Disorders. In addition, obtain updated VA treatment records dated December 19, 2019, the scanned records referenced in the August 1, 2018 and November 20, 2018 record entries, and re-upload the records contained in the June 16, 2020 file entitled “Medical Treatment Records – Government.” If any requested records are unavailable, the Veteran should be notified of such. 2. Forward the claims file to a VA audiologist, other than the audiologist who rendered the February 2020, August 2020, and October 2020 opinions, to obtain an opinion regarding the Veteran's bilateral hearing loss and tinnitus claims. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s tinnitus and/or hearing loss had its onset in, or is otherwise attributable to, his period of active service. In so opining, the clinician should comment on the significance, if any, of the medical treatise evidence submitted by the Veteran’s representative, pertaining to acceleration of age-related hearing loss by early noise exposure. (b.) If not related to service, is at least as likely as not (50 percent probability or greater) that the Veteran’s hearing loss and/or tinnitus was caused by the service-connected schizophreniform disorder, to include any medication taken for his service-connected schizophreniform disorder? (c.) If not cause by the service-connected schizophreniform disorder, is at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral hearing loss and/or tinnitus was worsened beyond natural progression (aggravated) by his service-connected schizophreniform disorder, to include any medication taken for his service-connected schizophreniform disorder? If the clinician finds that the Veteran's bilateral hearing loss and/or tinnitus was aggravated by his service-connected schizophreniform disorder, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the hearing loss and/or tinnitus. A complete rationale should be provided for all opinions and conclusions expressed. 3. After records development is completed to the extent possible, forward the claims file to a VA clinician to obtain an opinion regarding the Veteran's OSA. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that his OSA had its onset during service or is otherwise related to service, including his reports of restless sleep and waking up screaming. (b.) Whether it is at least as likely as not (50 percent probability or greater) that his OSA was caused by the service-connected schizophreniform disorder, to include any medication taken for his service-connected schizophreniform disorder? (c.) If not caused by the service-connected schizophreniform disorder, is it at least as likely as not that the Veteran's OSA is worsened beyond natural progression (aggravated) by his service-connected schizophreniform disorder, to include any medication taken for his service-connected schizophreniform disorder? If the clinician finds that the Veteran's OSA was aggravated by his service-connected schizophreniform disorder, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the OSA. A complete rationale should be provided for all opinions and conclusions expressed. 4. After adjudicating the referred CUE motion, readjudicate the Veteran's appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period should be allowed for response before the case is returned to the Board. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson 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.