Citation Nr: 21024028 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-53 297 DATE: April 21, 2021 ORDER Entitlement to service connection for right ear hearing loss disability is granted. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to gastroesophageal reflux disease (GERD), to include as secondary to post-traumatic stress disorder (PTSD) is remanded. Entitlement to an increased initial rating for residuals of traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. Right ear hearing loss disability is etiologically related to acoustic trauma sustained in active service. 2. Sleep apnea is caused or chronically worsened by service-connected posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss disability are met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from September 2008 to September 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013, November 2015, July 2016, and March 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2020. A transcript of that hearing has been added to the record. The Board notes that additional VA generated evidence has been added to the record since the last adjudication of the claims on appeal, to include VA examination reports. As discussed in greater detail below, the evidence currently of record is sufficient to grant the claims of entitlement to service connection for right ear hearing loss disability and sleep apnea. As such, a remand of those claims for consideration of the additional evidence in the first instance is unnecessary, as any due process violations as a result are considered harmless error. Service Connection – Right Ear Hearing Loss Disability The Veteran maintains that he has a right ear hearing loss disability that was incurred during active service. The Veteran has reported hazardous noise exposure during active service. A review of the service records shows that the Veteran’s military occupational specialty (MOS) during active service was motor vehicle operator. Further, the Veteran was monitored in the hearing conservation program due to the high probability of noise exposure during active service. Therefore, the Board finds that the reported hazardous noise exposure is consistent with the facts and circumstances of the Veteran’s service. As such, the Board concedes that the Veteran sustained acoustic trauma while in active service. Service treatment records (STRs) do not show the Veteran to have had right ear hearing loss disability for VA purposes at any time during his active service. However, the Veteran reported that he first experienced decreased right ear hearing acuity during his active service, and that the symptoms have continued since that time. Moreover, the Board finds the Veteran credible in that regard. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Veteran was afforded a VA audiology evaluation in February 2021. Audiometric testing results at that time show that the Veteran had right ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Board acknowledges that the February 2021 opined that the Veteran’s right ear hearing loss was less likely related to his active service. In so finding, the examiner noted the fact that the various audiological examinations completed in service showed no substantive evidence that the hearing loss occurred while in service. The Board finds the February 2021 VA medical opinion inadequate for adjudication purposes. The examiner failed to discuss the Veteran’s lay statements regarding the onset and continuity of his right ear hearing loss disability. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board notes that 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify reduced hearing acuity and report on the chronicity of symptomatology since active service. Moreover, his statements have been found credible. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for right ear hearing loss disability is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection – Sleep Apnea The Veteran has asserted that his sleep apnea began in service, or in the alternative, was caused or aggravated by his service-connected PTSD. Of record is a May 2019 statement from a private practitioner, A.C. At that time, A.C. noted that in preparation of the opinion, she had reviewed the Veteran’s claims file, to include STRs, compensation and pension examination reports, and VA and private treatment records. A.C noted that the Veteran was diagnosed with obstructive sleep apnea by sleep study in July 2018. However, A.C. also noted that the Veteran has reported ongoing sleep impairment and breathing issues while sleeping since his active service. A.C opined that it was at least as likely as not that the Veteran’s service-connected PTSD contributed to his sleep apnea. In so finding, A.C. noted that the prevalence of sleep apnea in Veteran’s with PTSD was higher, than that in Veteran’s without PTSD. Further, A.C. noted that sleep fragmentation and deprivation could cause upper airway instability that can contribute to sleep apnea, and the Veteran’s PTSD caused those types of chronic sleep impairment. Additionally, A.C. cited to medical literature which showed that the probability of having a high risk for sleep apnea increased with increasing levels of severity of PTSD. A.C. concluded that sleep apnea was a multi-factorial disease with a variety of identified causes, and that it was impossible to determine which risk factor was the immediate cause of the Veteran’s sleep apnea because sleep apnea risk factors often coexist and interactive with other conditions and risk factors. In support of the opinion, A.C. outlined the Veteran’s lengthy medical history and cited to medical literature. The Board finds that the May 2019 private medical opinion is adequate. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Further the examiner relied on their own expertise, knowledge, and training when drafting their report. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the May 2019 medical opinion is the most probative evidence of record. The Board notes that there VA medical opinions of record that are against the claim of entitlement to service connection for sleep apnea. However, the Board finds that those examiners failed to provide adequate supporting rationale for the conclusions reached. As such, they are inadequate for adjudication purposes, of low probative value, and will not be discussed further in this decision. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is warranted before the remaining claims on appeal are decided. Service Connection – GERD The Veteran has asserted that he has GERD that had its onset during his active service, or in the alternative, was caused or worsened by a service-connected disability, to include medication taken for treatment of such. At his April 2020 hearing before the Board, the Veteran testified that he first started to experience symptoms of GERD while he was in active service, and that his symptoms have continued since that time. A review of the post-service evidence of record shows that the Veteran reported symptoms of GERD as early as December 2012. A review of the record shows that the Veteran has not been afforded a VA examination to determine the nature and etiology of his GERD. In light of his report that his symptoms started in service, and the post-service evidence of treatment for symptoms of GERD; the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present GERD. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Increased Rating – TBI A review of the record shows that the Veteran was afforded a VA TBI examination in December 2020, and a VA headaches examination in February 2021. The Veteran’s claim of entitlement to a compensable rating for TBI was last adjudicated in a September 2017 statement of the case. The Veteran was not issued a supplemental statement of the case following the addition of the above noted VA examination reports to the record. As such, a remand is required for consideration of all evidence added to the record since the September 2017 statement of the case. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of his GERD. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies should be performed. Based on the examination results and a review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present GERD or associated symptoms had their onset during the Veteran’s active service, or are otherwise etiologically related to such service. In forming the opinion, the examiner should specifically address the Veteran’s lay statements regarding the onset and continuity of his symptoms. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present GERD or associated symptoms were caused or chronically worsened by a service-connected disability. In forming the opinion, the examiner must specifically consider the effects of increased anxiety and/or stress caused by the Veteran’s PTSD, and/or any medication taken to treat service-connected disabilities, to include use of non-steroidal anti-inflammatory drugs (NSAIDs). The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand, and undertake any other development determined to be warranted. (Continued on the next page)   4. Then, readjudicate the remaining issues on appeal, to specifically include consideration of whether the Veteran should have a separate compensable rating for headaches related to his service-connected TBI. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Andrew Ledman II 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.