Citation Nr: 21012997 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-12 706 DATE: March 8, 2021 ORDER Entitlement to service connection for left ear hearing is granted. REMANDED Entitlement to service connection for a visual perception disorder is remanded. Entitlement to an evaluation in excess of 70 percent disabling for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for sleep apnea (also claimed as breathing condition) is remanded. Entitlement to total disability based on individual unemployability is remanded. FINDING OF FACT The evidence is at least in equipoise that the Veteran’s left ear hearing loss is a chronic condition which onset during active service and has continued until the present day. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1969 to April 1971, and in the United States Army from June 1983 to November 1989. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. These matters have previously come before the Board. In November 2018, the Board remanded the issues of PTSD and sleep apnea for medical examinations to be conducted by VA. The Board remanded the claim for visual perception, with instructions to obtain service records after November 1989 and associate them with the claim file. The AOJ subsequently associated updated service records with the Veteran’s claim file. The Veteran was subsequently scheduled for VA examinations for PTSD and sleep apnea in compliance with the Board’s instructions. However, the Veteran did not attend the examinations. As the AOJ scheduled the Veteran’s examinations, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for left ear hearing is granted. The Veteran seeks entitlement to service connection for left ear hearing loss. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has been diagnosed with left ear hearing loss. See March 2012 VA Examination. Accordingly, the first Hickson element is satisfied. The Veteran has stated that he was exposed to traumatic noise during active service in Vietnam, where he was assigned as a helicopter door gunner. Military records confirm the Veteran’s Vietnam service, as well as his subsequent active service with field artillery units. Thus, the Board finds the second Hickson element is satisfied as the Veteran was exposed to traumatic noise on active duty. The third Hickson prong requires a link between the in-service noise exposure and the present hearing loss. The Veteran has contended that his hearing difficulties onset during his service in Vietnam. Private medical records submitted by the Veteran also indicate that the Veteran has reported his hearing loss originated in Vietnam. The private examiner indicated the Veteran was a helicopter door gunner in Vietnam and was also in a field artillery unit, which would cause chronic hearing loss. See March 2013 medical record within November 2013 Third Party Correspondence. The Board concludes the evidence is at least in equipoise that the Veteran’s left ear hearing loss is a chronic condition which onset during active service and has continued until the present day. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). The Hickson requirements are therefore satisfied, and the claim for service connection for left ear hearing loss is granted. REASONS FOR REMAND 1. Entitlement to service connection for a visual perception disorder is remanded. The Veteran seeks entitlement to service connection for a visual perception disorder. He has claimed this condition is caused by exposure to chemicals in the contaminated water at Camp Lejeune. The Board remanded the Veteran’s claim in November 2018. There is an indication of presbyopia in 1988 during service. In the absence of a superimposed disease or injury, refractive error of the eyes including myopia, presbyopia and astigmatism cannot be considered as a disease or injury within the meaning of applicable legislation relating to service connection. See 38 C.F.R. §§ 3.303(c), 4.9. A November 2015 VA treatment record noted cataracts in the problem list. A preliminary review of the evidence of record indicates that the Veteran has not yet undergone a VA examination for his visual perception condition. As a part of the duty to assist claimants, VA must provide a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); 38 U.S.C. § 5103A(d)(1). 2. Entitlement to an increased rating for PTSD is remanded. As mentioned previously, the Board remanded this claim in November 2018 for the Veteran to undergo a medical examination by VA. The Board explained that the medical evidence of record was insufficient to adjudicate the claim because the Veteran had not been afforded a VA examination in six years. Moreover, evidence the Veteran submitted from a private examiner was not consistent with the VA medical record. The Veteran did not attend his two most recently scheduled VA examinations for PTSD. Notice of the most recent examination, scheduled for October 2019, was mailed to the Veteran in advance of the appointment. However, the notice letter was returned to VA undelivered. The Veteran updated his mailing address nearly a year later, in September 2020. See September 2020 VA Form 572 Request for Change of Address / Cancellation of Direct Deposit. The Veteran and his representative have notified VA of the Veteran’s willingness to undergo a new examination in support of his claim. See November 2020 Third Party Correspondence. The Veteran is reminded that VA’s duty to assist Veterans is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Failure to report for a VA examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (b). As the Veteran and his representative have expressed willingness to participate in future examinations, and as the Veteran’s claim involves allegations of memory problems, the Board finds good cause has been shown for a new examination. The claim is remanded for further development. 3. Entitlement to service connection for sleep apnea (also claimed as breathing condition) is remanded. The Veteran seeks entitlement to service connection for sleep apnea, arguing it is caused or aggravated by his service-connected PTSD. The Veteran did not attend his most recently scheduled examination for his sleep apnea claim, which was scheduled to be conducted on the same date as his PTSD examination as described above. The Veteran is reminded that VA’s duty to assist Veterans is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Failure to report for a VA examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (b). As the Veteran and his representative have expressed willingness to participate in future examinations, and as the Veteran has alleged memory problems due to service-connected disability, the Board finds good cause has been shown for a new examination. The claim is remanded for further development. 4. Entitlement to total disability based on individual unemployability is remanded. The Board finds the Veteran’s claim for TDIU is inextricably intertwined with the resolution of the other remanded issues discussed above. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the nature and etiology of his visual perception condition. The examiner should review the Veteran’s complete claim file and provide an answer to the following question: (a.) For each identified eye disorder, claimed as a visual perception disorder, other than refractive error, is it at least as likely as not (50 percent or greater probability) that the Veteran has that was incurred in, caused by, or otherwise related to his military service, to include service at Camp Lejeune? (b.) For each identified disorder that is determined to be a refractive error, is it at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury that occurred during service and resulted in additional disability? 2. Schedule the Veteran for a VA examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the present level of severity of his PTSD, to include social and occupational impairment. 3. Schedule the Veteran for a VA examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the nature and etiology of his sleep apnea. The examiner should review the Veteran’s complete claim file and provide an answer to the following question: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is caused or aggravated by his service-connected disabilities, including PTSD? The examiner should consider and address the private medical opinion dated February 2014 stating that PTSD aided in the development of, and permanently aggravates the Veteran’s OSA as a result of sedative medication that he continuously takes, and accompanying research showing a link between psychiatric disorders and OSA. See documents within February 2017 Correspondence. 4. After completing the Board’s instructions above, readjudicate the Veteran’s claim for TDIU. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.