Citation Nr: 21025131 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-51 892 DATE: April 27, 2021 ORDER Service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to a compensable rating for right ear hearing loss disability is remanded. FINDINGS OF FACT 1. Service connection has been established for major depressive disorder, a “choking sensation of unknown origins,” right fourth finger trauma residuals, left fifth finger crush injury residuals, right ear hearing loss, and tinnitus. 2. Obstructive sleep apnea has been shown to be related to service-connected major depressive disorder. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 1974 to September 1979. Service Connection for Obstructive Sleep Apnea Service connection may be established for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be established on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for major depressive disorder, a “choking sensation of unknown origins,” right fourth finger trauma residuals, left fifth finger crush injury residuals, right ear hearing loss, and tinnitus. An April 2015 Department of Veterans Affairs (VA) sleep study states that the Veteran was diagnosed with obstructive sleep apnea. An April 2017 sleep apnea evaluation from H.Skaggs, M.D., states that the Veteran was diagnosed with obstructive sleep apnea. The Veteran reported that he was unable to use a prescribed CPAP machine due to the service connected major depressive disorder. Dr. Skaggs concluded that “based on my interview with the Veteran, review of medical records and supporting literature, it is my opinion the Veteran’s depressive disorder more likely than not aided in the development and permanent aggravates his obstructive sleep apnea.” A VA sleep study diagnosed obstructive sleep apnea. Dr. Skaggs concluded that the service-connected major depressive disorder “permanently aggravated” the diagnosed obstructive sleep apnea. Therefore, the Board of Veterans’ Appeals (Board) finds the evidence is in at least equipoise as to whether the diagnosed obstructive sleep apnea is caused or aggravated by a service-connected psychiatric disability. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection for obstructive sleep apnea, due to the service connected major depressive disorder, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. The report of the December 1972 physical examination for service entrance shows that the Veteran exhibited pure tone thresholds, in decibels, that were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 - 0 LEFT 5 0 0 - 35 A hearing loss disability was not diagnosed. The report of a July 1976 periodic examination shows that the Veteran exhibited pure tone thresholds, in decibels, that were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 0 LEFT 0 0 0 - 0 The report of the September 1979 physical examination for service separation states that the Veteran exhibited pure tone thresholds, in decibels, that were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 15 15 LEFT 0 0 0 30 25 A hearing loss disability was not diagnosed. In December 2018 and November 2020 Remand instructions, the Board requested that the Veteran be scheduled for a VA audiology examination. The examiner was requested to “indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left ear hearing loss had onset during service or is otherwise related to his active military service” and “the examiner is asked to address the Veteran’s in-service audiological examinations in 1972, 1976, and 1979.” The report of a December 2020 audiology examination conducted for VA states that the Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner commented that “enlistment exam indicated a left ear hearing loss present at 4000 Hertz only, however, exit exam indicated hearing within normal limits” and “therefore, this Veteran’s preexisting hearing loss was not aggravated beyond normal progression due to military service.” The audiologist did not note or otherwise address the July 1976 audiometric examination. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Agency of Original Jurisdiction’s compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Because of the cited deficiencies, the Board finds that further VA audiological evaluation is needed. Clinical documentation dated after November 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to a compensable rating for right ear hearing loss is remanded. The issue of entitlement to a compensable rating for right ear hearing loss is inextricably intertwined with the issue of entitlement to service connection for left ear hearing loss being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated any hearing loss disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include those pertaining to treatment after November 2020. 3. Schedule the Veteran for a VA audiology examination to assist in determining the nature of any left ear hearing loss disability and any relationship to active service and the current nature and severity of service-connected right ear hearing loss. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all left ear hearing loss found. (b) Conduct audiometric testing and speech recognition testing using the Maryland CNC test. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left ear hearing loss had its onset during active service or is related to any incident of service, including conceded in service artillery-related noise exposure. The examiner must note and discuss the “in service audiological examinations in 1972, 1976, and 1979.” (d) If any identified left ear hearing loss is shown by clear and unmistakable (obvious and manifest) evidence to have existed prior to service entrance, opine whether it is clear and unmistakable that any preexisting hearing loss disability was not aggravated during active service. If any identified preexisting left ear hearing loss increased in severity during active service, then the examiner should address whether the evidence clearly and unmistakably demonstrates that the increase was due to the natural progression of the disability. (e) The examiner should specifically address the impact of right ear hearing loss on the Veteran’s vocational pursuits. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.