Citation Nr: 21016069 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 19-28 551 DATE: March 19, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a disability due to a medically unexplained chronic multisystem illness (MUCMI) or an undiagnosed illness, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a migraine condition, to include as secondary to sleep apnea, is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the May 2014 rating decision that denied service connection for bilateral hearing loss; this rating decision became final. 2. Additional evidence received since the final May 2014 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The May 2014 rating decision denying the Veteran’s claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from August 2001 to August 2006 during the Persian Gulf War era. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran, through his authorized representative, waived RO jurisdiction on any new and material evidence submitted in support of the claims. See October 2020 appellate brief. In general, the RO’s determination that is not appealed within one year becomes a final decision, which may only be reopened with a showing of new and material evidence. 38 U.S.C. §§ 5108; 7105. New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Veteran’s claim of entitlement to service connection for bilateral hearing loss was denied in a May 2014 rating decision on the basis that there was no evidence of record showing that there was a current diagnosis or that the condition was incurred in or caused by service. The Veteran did not appeal the May 2014 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b). Accordingly, the May 2014 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed a claim to reopen in April 2017. The RO denied the claim to reopen in an August 2017 rating decision on the basis that there was no new and material evidence received sufficient to reopen the claim. The Board finds that there is a sufficient evidentiary basis to reopen the claim for service connection for bilateral hearing loss. New evidence received since the last final denial in May 2014 includes the September 2019 VA examination for ear condition, which notes an audiological examination from August 2019 indicating asymmetrical hearing loss, and the Veteran’s September 2019 statement that his hearing has worsened. The Board finds that this provides sufficient basis to reopen. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran’s claim: that is, that there is a current disability. Accordingly, as new and material evidence has been received, the Board finds that the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a disability including as due to a MUCMI or an undiagnosed illness is remanded. The Board finds that a remand is necessary to obtain a VA medical examination to determine the nature and etiology of the Veteran’s reported symptoms. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Veteran has reported symptoms to include fatigue, headaches, neck pain, gastrointestinal symptoms, insomnia, dizziness, respiratory disorder, eye or vision issues, and memory problems. See October 2019 RO hearing; October 2019 correspondence. The Veteran’s VA treatment records indicate past treatment for such symptoms. See July 2020 CAPRI records. As for a nexus to the Southwest Asia theatre of operations, the Veteran has reported that he believes he was in Bahrain as well as near the Iraqi border. See September 2019 correspondence. The Veteran also told a VA clinician that he was stationed in Yemen, UAE, Oman, and Saudi Arabia. See April 2015 VA treatment record. Review of the record indicates that the Veteran has not been provided with a VA examination to assess the nature and etiology of this claimed disability. In light of the presence of a possible disability and a plausible nexus to service, the Board finds that the “low threshold” requirement under McLendon, 20 Vet. App. 79 (2006), is met, and the Veteran should be afforded a VA examination. The Board does not currently make a finding as whether the provisions of 38 C.F.R. § 3.317 apply to this appeal, but finding that an examination would be of great assistance in answering the questions before it. 2. Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is remanded. The Veteran contends that his sleep apnea is related to service or secondary to his PTSD or to weight gain, which is in turn secondary to his service-connected musculoskeletal conditions or the medications taken for his various service-connected conditions. See October 2019 correspondence. The Board finds that a remand is necessary to obtain a VA medical examination that addresses these contentions. The VA examination report of June 2017 and addendum opinion of January 2018, authored by two separate VA physicians, do not address the Veteran’s contentions as set out above and do not include an opinion on whether the Veteran’s sleep apnea was aggravated by his service-connected PTSD. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Walsh v. Wilkie, 32 Vet. App. 300 (2020). Thus, the case must be returned for an addendum opinion. The Board notes the two favorable opinions of record, namely an opinion dated August 2019 by a physician’s assistant, R.F., and an opinion received in September 2019 by a VA physician, S.F. However, the former opinion does not specifically address the Veteran’s extensive medical record, but rather relies on medical literature generally indicating that PTSD and sleep apnea are mutual risk factors. The latter opinion fails to address the Veteran’s specific medical record, to include the Veteran’s service treatment records. The opinion is based, in part, on the author’s conclusion that the separation physical of 2006 purportedly noted sleep problems. However, the May 2006 report of medical history of record notes that the Veteran reported no frequent trouble sleeping. Furthermore, the opinion states in a conclusory fashion that no other risk factors are relevant without addressing the multiple VA treatment records where other risk factors are noted. Given the conflicting opinions of record, the Board finds that the favorable opinions are insufficient to award a grant of service connection. On remand, the examiner will be asked to address these favorable opinions. 3. Entitlement to service connection for bilateral hearing loss is remanded. The Board finds that a remand is necessary to obtain a VA medical examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Following the claim to reopen, competent evidence of a current disability has been associated with the record. In light of the presence of a possible disability and a plausible nexus to service, the Board finds that the “low threshold” requirement under McLendon, 20 Vet. App. 79 (2006), is met, and the Veteran should be afforded a VA examination. 4. Entitlement to service connection for a migraine condition, to include as secondary to sleep apnea, is remanded. As the outcome of the Veteran’s claims of service connection for a medically unexplained chronic multisystem illness, an undiagnosed illness or sleep apnea may impact his claim of service connection for a migraine condition, the latter claim is inextricably intertwined with the former claim. 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). Therefore, adjudication of the migraine claim must be deferred until the RO has adjudicated the Veteran’s remanded service connection claims. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the Veteran’s reported symptoms claimed as manifestations of a medically unexplained chronic multisystem illness or undiagnosed illness. All necessary testing and evaluation should be performed, and all findings set forth in detail. The examiner is asked to elicit from the Veteran and the record, a detailed history of the Veteran’s reported signs and symptoms. Thereafter, the examiner should provide an opinion as to the following: (a) Indicate whether the Veteran’s signs and symptoms are: (i) associated with any specific pathology or diagnosed disorder; (ii) considered an undiagnosed illness; or (iii) considered a medically unexplained chronic multi-symptom illness. (b) For any clinically diagnosed disorder, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset during or is otherwise etiologically related to service. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 3. After completion of directive #1, obtain an addendum opinion from an appropriate medical professional to determine the nature and etiology of the Veteran’s sleep apnea. After reviewing the claims folder in its entirety, the examiner should address the following: (a) Is the Veteran’s sleep apnea at least as likely as not related to an in-service injury, event, or disease in service? (b) In the alternative, is the Veteran’s sleep apnea at least as likely as not (50 percent or greater probability) caused by his service-connected PTSD; and (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea has been aggravated by his service-connected PTSD? If the Veteran’s sleep apnea is not related to service or otherwise caused or aggravated by his service-connected PTSD, then, the examiner should address the following: (d) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected musculoskeletal disabilities or medications taken for any service-connected disabilities lead to obesity which then led to sleep apnea? In rendering the opinions set out above, the examiner should address the Veteran’s lay statements, the various buddy statements of record, the medical literature submitted by the Veteran, the August 2019 opinion by physician’s assistant, R.F., and the September 2019 opinion by physician, S.F. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 4. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed bilateral hearing loss. The claims file, to include a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. All testing deemed necessary must be conducted. The examiner must opine on the following: Is any bilateral hearing loss at least as likely as not (a 50 percent probability or greater) etiologically related to (caused or aggravated by) an in-service injury, event, or disease? A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.