Citation Nr: 21012485 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-21 554 DATE: March 4, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for skin cancer on the head (skin cancer) is remanded. Entitlement to a compensable rating for a left ear drum rupture is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from July 1961 to July 1964. The Veteran testified at a hearing before a Veterans Law Judge in January 2021. A transcript of the hearing is of record. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran is currently diagnosed with sleep apnea. See Medical Treatment Record received January 2021. The Veteran contends that his sleep apnea is due to his active duty military service, as he first began displaying symptoms of the condition, such as restless sleep and loud snoring, while serving as a diver in the U.S. Navy. In fact, he alleged that his snoring became so loud that he had to sleep in a different room than the rest of his team. See January 2021 Hearing Transcript. Furthermore, while the Veteran’s service treatment records (STRs) are silent for complaints or treatment related to sleep apnea, he stated at the hearing before the Board that he avoided seeking treatment due to a fear that he would be prohibited from diving as a result. While the Veteran has submitted treatment records relating to his sleep apnea, to date, no VA medical opinion has been obtained to address whether the Veteran’s sleep apnea is etiologically related to his military service. Moreover, while the evidence above is insufficient to support a grant of service connection, such evidence is at least sufficient to trigger VA’s duty to obtain a VA examination and medical opinion to address his claim for service connection. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006). Accordingly, on remand, a VA examination is required consistent with the directives herein. 2. Entitlement to service connection for skin cancer is remanded. The record indicates that the Veteran has had a diagnosis of squamous cell carcinoma of the scalp (skin cancer). See Medical Treatment Record received January 2021. The Veteran contends that his current skin cancer is due to sun and chemical exposure that he sustained while serving in the Navy. See January 2021 Hearing Transcript. While the Veteran has submitted various treatment records pertaining to his skin cancer, to date, no VA medical opinion has been obtained to address specifically whether the Veteran’s skin cancer is etiologically related to his military service. Moreover, while the evidence above is insufficient to support a grant of service connection, such evidence is at least sufficient to trigger VA’s duty to obtain a VA examination and medical opinion to address his claim for service connection. See McLendon, 20 Vet. App. at 81-84. Accordingly, on remand, a VA examination is required consistent with the directives herein. 3. Entitlement to a compensable rating for a left ear drum rupture is remanded. The Veteran is currently service connected for a left ear drum rupture and assigned a noncompensable rating. See January 2017 Rating Decision. Although additional delay is regrettable, the Board finds that remand is warranted to provide the Veteran with an updated VA examination and to obtain outstanding treatment records that are relevant to the claim. Indeed, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s increased rating claim so that he is afforded every possible consideration. In this case, the most recent VA examination for compensation purposes was conducted in December 2016, over four years ago. At the Veteran’s January 2021 Board hearing, he indicated that effluent runs from his left ear roughly four to five times per month. Specifically, the Veteran stated that he will suddenly feel it running out of his ear and that he must go to the bathroom and flush his ear out because he starts to lose his hearing. Additionally, he indicated that several times per month he has troublesome cerumen buildup, which causes constant itching and occasional headaches. The Veteran also reported that he suffers vertigo and dizziness, which sometimes results in very bad nausea. For treatment, the Veteran indicated that he flushes his ear out every night, and was prescribed ear drops to use after he flushes ears. While the December 2016 VA examination revealed evidence of a left healed tympanic membrane perforation, the examination did not reference the Veteran’s current symptoms including vertigo, cerumen buildup, effluent discharge, and treatment thereof. Thus, the record likely does not reflect the current state of the Veteran’s disability. Accordingly, VA’s duty to assist necessitates that this claim be remanded to schedule a new VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Remand is also necessary to obtain outstanding treatment records. The Veteran indicated at the January 2021 Board hearing that he receives treatment from VA for his ear troubles; however, the most recent VA treatment records associated with the claims file are from 2016. The Veteran also reported that he sees a private doctor at Garden State Hearing and Balance center; however, those medical records are not of record. Thus, the duty to assist also requires remand so that outstanding VA and private treatment records may be obtained. The matters are REMANDED for the following actions: 1. Make reasonable efforts to obtain any outstanding VA and private treatment records, to specifically include updated VA records from 2016 to present and those from Garden State Hearing and Balance Center, referenced at the Veteran’s January 2021 Board Hearing. With the Veteran’s assistance, obtain copies of any pertinent records and add them to the claims file. If VA attempts to obtain any outstanding records, which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed, schedule the Veteran for a VA examination with an appropriate examiner to evaluate the nature and etiology of his sleep apnea. The Veteran’s claims file (to include this decision) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s sleep apnea had its onset in or was otherwise related to active duty service. In rendering the opinion above, the examiner should specifically consider and discuss the Veteran and his wife’s statements regarding the onset of his sleep apnea. See January 2021 Hearing Transcript and Correspondence received January 2021. A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the requested development has been completed, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his skin cancer. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s skin cancer had its onset in, or is otherwise related to his active duty service. In rendering the opinion above, the examiner should specifically consider and discuss the Veteran’s statements indicating that he was exposed to lead paint, zinc chromate, paint thinner, turpentine, asbestos, and diesel fumes. The examiner should also address the Veteran’s statements regarding blisters on his hands and face that occurred shortly after leaving the Navy. See Correspondence received February 2021. Additionally, the examiner should address the Veteran’s statements regarding his sun exposure and severe sunburns that he received while in the Navy. See January 2021 Hearing Transcript. A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the requested development has been completed, schedule the Veteran for a VA examination to determine the current symptomatology and severity of his left ear drum rupture. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings should be reported in detail. The examiner should specifically address the Veteran’s statements regarding effluent discharge, vertigo, cerumen buildup, and the associated symptoms, and indicate whether these are symptoms of his service-connected disability. See January 2021 Hearing Transcript. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.