Citation Nr: 21023213 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-41 680 DATE: April 20, 2021 REMANDED Entitlement to service connection for a sleep disability, to include as due to herbicide agent exposure or as secondary to a service-connected psychiatric disability, is remanded. Entitlement to service connection for a heart disability, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for right ear hearing loss, prior to January 29, 2018, is remanded. Entitlement to an initial rating in excess of 0 percent for bilateral hearing loss, as of January 29, 2018, is remanded. Entitlement to an initial rating in excess of 0 percent for left ear hearing loss, prior to January 29, 2018, is remanded. REASONS FOR REMAND In February 2020, the Board remanded the claims on appeal and an additional claim for service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD). A December 2020 rating decision established service connection for a psychiatric disability, characterized as a stressor or trauma-related disorder, other than PTSD. Because the AOJ’s December 2020 decision constituted a full grant of the claim for service connection for a psychiatric disability, that claim is no longer on appeal before the Board. The Veteran initially filed a claim for service connection for bilateral hearing loss. A January 2014 rating decision established service connection for left ear hearing loss and assigned a 0 percent rating, effective May 15, 2012; and denied service connection for right ear hearing loss. The Veteran appealed both the denial of service connection for right ear hearing loss and the initial rating assigned for left ear hearing loss to the Board. An August 2019 rating decision established service connection for right ear hearing loss, effective January 29, 2018, and assigned a 0 percent rating for bilateral hearing loss, effective January 29, 2018. However, the original claims for a higher initial rating for left ear hearing loss and service connection for right ear hearing loss, both prior to January 29, 2018, are still in appellate status and are still before the Board. 1. Entitlement to service connection for a sleep disability is remanded. The Veteran is seeking service connection for a sleep disability. In a June 2017 disability benefits questionnaire, a private examiner indicated that the Veteran had diagnosed insomnia somehow related to a psychiatric disability, diagnosed as PTSD. A December 2020 rating decision established service connection for a psychiatric disability, characterized as a stressor or trauma-related disorder. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a sleep disaiblity, because no VA examiner has opined whether the claimed disability is caused or aggravated by as service-connected psychiatric disability. Remand is necessary to schedule an examination. 2. Entitlement to service connection for a heart disability is remanded. 3. Entitlement to service connection for prostate cancer is remanded. 4. Entitlement to service connection for right ear hearing loss, prior to January 29, 2018, is remanded. 5. Entitlement to an initial rating in excess of 0 percent for bilateral hearing loss, as of January 29, 2018, is remanded. 6. Entitlement to an initial rating in excess of 0 percent for left ear hearing loss, prior to January 29, 2018, is remanded. Regarding all claims, the VA treatment records currently in evidence contain notations indicating that a VA employee scanned medical records into a VA hospital's imaging system, but do not contain any copies of the scanned records. Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal. Remand is required to allow VA to obtain those records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Specifically, obtain the most recent VA treatment records not included in the record of evidence and the records noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment records in evidence, dated September 29, 2020; September 11, 2020; September 3, 2020; August 28, 2020; August 7, 2020; July 29, 2020; July 27, 2020; July 24, 2020; July 22, 2020; July 20, 2020; July 15, 2020; July 6, 2020; July 1, 2020; June 29, 2020; June 26, 2020; June 24, 2020; June 22, 2020; June 5, 2020; June 2, 2020; May 16, 2020; May 15, 2020; May 1, 2020; April 23, 2020; April 13, 2020; April 3, 2020; October 14, 2019; September 30, 2019; July 11, 2018; June 27, 2018; June 11, 2018; April 26, 2017; April 10, 2017; October 26, 2016; August 24, 2016; June 21, 2016; June 3, 2016; May 24, 2016; April 22, 2016; April 19, 2016; March 21, 2016; March 18, 2016; September 17, 2015; September 3, 2015; August 6, 2015; August 4, 2015; July 30, 2015; July 22, 2015; June 17, 2015; April 20, 2015; March 6, 2015; March 4, 2015; February 27, 2015; January 27, 2015; January 21, 2015; January 15, 2015; December 17, 2014; September 3, 2014; August 6, 2014; May 30, 2014; May 13, 2014; April 24, 2014; April 23, 2014; January 28, 2014; January 17, 2014; December 10, 2013; November 18, 2013; September 3, 2013; August 15, 2013; June 21, 2013; April 19, 2013; March 7, 2013; February 6, 2013; November 2, 2012; October 24, 2012; and October 10, 2012. 2. Then, schedule the Veteran for a VA medical examination by a qualified examiner who has not previously examined the Veteran to determine the nature and the etiology of the claimed sleep disability. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records; the post-service treatment records, to include the June 2017 VA disability benefits questionnaire and accompanying medical opinion; and the Veteran's lay statements regarding symptoms during and since service. A complete rationale should be stated for all opinions and conclusions expressed. If the examiner disagrees with any opinion, to include that of the June 2017 private examiner, the examiner should note the disagreement and explain the reasons for disagreement in the examiner’s opinions required by this remand. After an examination, a review of the claims file, and an interview with the Veteran, the examiner is asked to also provide the following opinions: (a.) Diagnose any current sleep disorders that are not merely symptoms of a service-connected psychiatric disability. If there is no sleep disorder other than that which is a symptom of the service-connected psychiatric disability, that should be stated and the finding explained. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any sleep disorder had its onset during service or is related to any event, injury, or disease during service. The examiner should consider the Veteran’s lay statements regarding symptoms during and since service. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that any sleep disorder is proximately due or caused by a service-connected psychiatric disability. (d.) Opine whether it is at least as likely as not (50 percent or greater probability) that any sleep disorder is aggravated (increased in severity beyond the natural progress of the disorder) by a service-connected psychiatric disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.M. Gillett 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.