Citation Nr: 21026540 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-14 176A DATE: May 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an earlier effective date than January 6, 2021 for the grant of service connection for bilateral hearing loss is remanded. FINDINGS OF FACT A February 2021 rating decision granted service connection for bilateral hearing loss. CONCLUSIONS OF LAW There remains no case or controversy for appellate consideration with respect to the claim for service connection for bilateral hearing loss, therefore the appeal is dismissed as moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1974 to October 1978. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in February 2019. A transcript of the proceeding has been associated with the file. The claims were previously before the Board in February 2020 and January 2021. In February 2020, the Board denied service connection for bilateral hearing loss. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated that part of the Board's February 2020 decision. During the pendency of the appeal, the Veteran's claim for service connection for bilateral hearing loss was granted by the AOJ. In January 2021, the claim for service connection for sleep apnea was remanded to the AOJ for further development to include obtaining an adequate medical opinion as to the etiology of the Veteran's sleep apnea. The claim has been returned to the Board for appellate review. Entitlement to service connection for bilateral hearing loss The Board has jurisdiction in all matters where there is a question of law or fact necessary for a decision by the Secretary of Veterans Affairs under a law that affects the provision of benefits by the Secretary to veterans or their dependents or survivors. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A February 2021 rating decision granted entitlement to service connection for bilateral hearing loss. As such, the Veteran's appeal for entitlement to service connection for bilateral hearing loss is moot, as the benefit sought on appeal has already been granted. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). Because there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal with respect to this issue is dismissed. 38 U.S.C. § 7105 (d)(5). REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. Although the Veteran was afforded a VA examination for his sleep apnea in February 2021 pursuant to the January 2021 remand directives, another remand is required to address a new theory of entitlement raised by the Veteran. The Veteran contends that his sleep apnea is caused or aggravated by his service-connected sinusitis and allergic rhinitis. The Board cannot make a fully informed decision on the issue of secondary service connection for sleep apnea because no VA examiner has opined whether the Veteran's sleep apnea is proximately due to or aggravated by his service-connected conditions. Accordingly, further remand is required. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his sleep apnea. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 2. After completion of the development requested above, the AOJ should forward the entire claims file in electronic records to the January 2021 VA examiner or, if that examiner is unavailable, then to another qualified VA examiner. If additional examination is indicated, it should be scheduled in accordance with applicable procedures and all indicated studies should be performed. The claims file must be available to and be reviewed by the examiner, to include any newly obtained evidence as a result of the above ordered development. The examiner should provide an opinion regarding the nature and etiology of the Veteran's sleep apnea, which addresses the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should provide an opinion, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea is proximately due to or aggravated by the Veteran's sinusitis and/or rhinitis and any associated treatment. The examiner should note aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After ensuring compliance with these objectives, the AOJ should readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.