Citation Nr: 21028482 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-03 586 DATE: May 11, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to coronary artery disease (CAD), is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in June 2020. The agency of original jurisdiction (AOJ) initially denied the Veteran's claim of service connection for OSA and tinnitus in an October 2012 rating decision. In November 2012, the AOJ issued a subsequent rating decision for the Veteran's claim of service connection for OSA to address a June 2011 progress note from Sleep Diagnostics of Michigan, which VA had in its possession but did not consider in the October 2012 rating decision. The AOJ denied the Veteran's claim of service connection for OSA in a November 2012 rating decision. In an August 2014 Notification Letter, VA notified the Veteran it reviewed his file and discovered additional medical evidence the Veteran submitted in September 2012, which VA did not consider in either the October 2012 or November 2012 rating decisions. The AOJ issued a subsequent rating decision in August 2014, which addressed the previously unconsidered evidence, and denied the Veteran's claims of service connection for OSA and tinnitus. The AOJ, in part, reasoned the evidence did not show the Veteran's OSA was related to his service-connected CAD nor that his tinnitus was incurred in service. In February 2015, within one year of the August 2014 rating decision, the Veteran submitted new claims of service connection for OSA and bilateral hearing loss. He also submitted a lay statement in support of his claims for OSA, bilateral hearing loss, and tinnitus. In the lay statement, the Veteran offered written testimony of in-service acoustic trauma to support his bilateral hearing loss and tinnitus claims. Moreover, he reported that he was told by J.K., PA-C, that OSA has an association with CAD. Although the Veteran submitted a new claim for service connection for OSA in February 2015 and the AOJ treated it as a claim to reopen the August 2014 rating decision, VA received the Veteran's February 2015 lay statement within one year following the August 2014 rating decision that denied service connection for OSA and tinnitus, and the lay statement is related to unestablished facts necessary to substantiate both claims. See 38 C.F.R. § 3.156(a). Based on this procedural history, the Board finds the October 2012 rating decision never became final as to the Veteran's claims of service connection for OSA and tinnitus and this rating decision is the one on appeal with respect to these two issues. See 38 C.F.R. § 3.156(b). During the June 2020 hearing, the Veteran's representative asserted that the Veteran properly appealed his claim of service connection for tinnitus despite not filing a Notice of Disagreement (NOD) on a particular form. Under 38 U.S.C. § 7105(a), an appeal to the Board is initiated by a NOD and completed by a substantive appeal (VA Form 9 or equivalent) after a statement of the case (SOC) is furnished to the claimant. See 38 C.F.R. § 20.201. Prior to March 24, 2015, a NOD did not have to be on a particular form. Rather, a NOD was defined as a written communication from a claimant or representative, expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. Special wording was not required, but the NOD had to be in terms that can reasonably be construed as a disagreement with the determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). All communications should be liberally construed. Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). As noted above, the AOJ originally denied the Veteran's claim of service connection for tinnitus in an October 2012 rating decision and then again in an August 2014 rating decision. In October 2014 the Veteran submitted VA Form 9, Appeal to Board of Veterans' Appeals. Although the Veteran did not submit a NOD, he did clearly express his dissatisfaction with the AOJ's decision with respect to the issue of tinnitus and his desire to contest the result. Thus, the Board find's the Veteran's October 2014 Form 9 is a written communication that constitutes a timely filed NOD and places the issue of service connection for tinnitus in appellate status. 1. Entitlement to service connection for bilateral hearing loss As a preliminary matter, the Board concedes the Veteran's exposure to an in-service acoustic trauma based on his testimony at the June 2020 hearing. He testified that while stationed in Vietnam, he was a driver and gunner in an armored personnel carrier and his position was underneath a machine gun that was fired often. Moreover, he testified he was near a landmine explosion and immediately experienced hearing loss and ringing in his ears after the explosion. VA provided the Veteran an audiological examination in September 2012. Unfortunately, this examination is inadequate to decide the Veteran's claim. The examiner concluded the Veteran did not have right ear hearing loss for VA purposes and his left ear hearing loss was not related to his active duty service. The examiner opined the Veteran's hearing loss was less likely than not a result of his active duty service, in part, because the Veteran had normal hearing when exiting active duty. However, normal hearing at separation is not fatal to a claim of service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The rationale is therefore inadequate. Moreover, the examiner based the negative nexus opinion, in part, on the absence of an in-service acoustic trauma because the Veteran's Military Occupational Specialty was "Unit & Organizational Specialist." However, the examiner did not consider the Veteran's role driving an armored personnel carrier and his exposure to gun fire and the landmine explosion. Therefore, the examiner based the negative opinion on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Moreover, as the 2012 VA examination found the Veteran did not meet the criteria for a hearing loss disability in his right ear but the Veteran has indicated his hearing has worsened since the 2012 VA examination, the Board finds that a new VA examination with audiological testing is warranted to determine if the Veteran meets the criteria for a hearing loss disability in both ears and to afford the Veteran every reasonable opportunity to prevail on his claim. 2. Entitlement to service connection for OSA, to include as secondary to CAD VA provided the Veteran an examination in September 2012 to determine the nature and etiology of his OSA. The examiner opined the Veteran's OSA was less likely than not proximately due to or the result of his service-connected CAD. Unfortunately, this examination is inadequate to decide the Veteran's claim. First, the September 2012 VA examiner failed to address aggravation in the context of secondary service connection. See 38 C.F.R. § 3.310; see also Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018) (causation and aggravation are independent concepts and should have separate findings and rationale); El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (findings of "not due to," "not caused by" and "not related to" are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Second, the September 2012 examiner reasoned the Veteran's OSA is due to an obstruction in his respiratory air passage and CAD causes obstructions in blood vessels to the heart but not OSA. In March and November 2017, the Veteran submitted private medical statements from J.K., PA-C that suggests an association between OSA and CAD. Although it is not readily clear what the association may be, a new opinion that considers all the evidence of record, to include the recently submitted medical statement by J.K., PA-C, is necessary to ensure the decision on the Veteran's claim is fully informed. The Board notes at the June 2020 hearing, the Veteran asserted that herbicide agent exposure caused his OSA. There is currently no competent evidence that suggests the Veteran's OSA may be associated with herbicide agent exposure. If the Veteran desires further VA assistance regarding this theory of entitlement, to include the provision of a nexus opinion, he is advised he must submit competent evidence that suggests his OSA may be associated with herbicide agent exposure, since lay assertion that such a link exists is insufficient to trigger VA's duty to assist through the provision of a nexus opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). 3. Entitlement to service connection for tinnitus As noted above, the Board found the Veteran submitted a timely NOD in response to the August 2014 rating decision. The AOJ did not provide the Veteran with a statement of the case relating to the October 2014 NOD with respect to this issue. When the Veteran filed a timely NOD to the August 2014 rating decision, the appellate process commenced. Therefore, a remand is required to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Schedule an examination with a qualified clinician regarding the Veteran's claim for hearing loss. For any hearing loss found in either ear, the examiner must opine whether it is at least as likely as not (50% degree of probability or higher) that the current hearing loss disability began in or is otherwise caused by the Veteran's active service. The examiner is advised in-service acoustic trauma is conceded. If the examiner finds that the Veteran's current hearing loss is not related to service because of audiograms showing hearing within normal limits in service or upon exit from service, the examiner must explain WHY the normal audiograms would preclude the current hearing loss being related to acoustic trauma in service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Obtain an opinion from a clinician to determine whether sleep apnea is related to the Veteran's military service. The claims file must be made available to and be reviewed by the clinician. If the clinician determines that an examination of the Veteran is required to provide the requested opinion, one should be scheduled. The selected clinician must provide an opinion addressing whether the Veteran's sleep apnea is at least as likely as not (50 percent probability or greater) proximately due to, or aggravated by, his service-connected CAD. The opinion must address both causation and aggravation to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. The examiner must be further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided that includes a discussion of any pertinent evidence of record, including the March and November 2017 private medical statements from J.K., PA-C indicating an association between CAD and OSA. 3. Issue a statement of the case with respect to the August 2014 rating decision and corresponding October 2014 NOD regarding service connection for tinnitus. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.