Citation Nr: 21031375 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 13-28 675A DATE: May 21, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for ischemic heart disease is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1970 to November 1973. He had subsequent Reserve service. He testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in November 2017. A transcript of the hearing is of record. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected acquired psychiatric disability. 2. Entitlement to service connection for ischemic heart disease is remanded. 3. Entitlement to service connection for prostate cancer is remanded. 4. Entitlement to service connection for diabetes mellitus, type II, is remanded. 5. Entitlement to service connection for hypertension is remanded. 6. Entitlement to a TDIU is remanded. There has not been substantial compliance with the Board's prior to remand directives. As previously noted, the Veteran contends that he was sent from Thailand to Vietnam on official duty and therefore was exposed to herbicide agents during his period of active duty service. He further contends service connection is warranted for all of the issues listed above either on a presumptive basis or a secondary to a presumptive disability (see e.g. September 2013 claim contending sleep apnea is secondary to diabetes mellitus, ischemic heart disease, and/or acquired psychiatric disability). In June 2018, the Board stated, "given his reports of being sent from Thailand to Vietnam on official duty, morning reports should be requested in an attempt to verify his reports of Vietnam assignments." The file indicates that in April 2020, the RO sent a request for: Morning reports fro VBMS cases, search morning reports of <> from <<07/01/1973>> to <<08/31/1973>> containing remarks regarding <> In January 2021, the RO received a standard "NPRC MPR Search Request Form" with no notes contained. Under L&T Comments, it states "020-V-042020." This comment matches up with the April 2020 request for information sheet indicating: "REQUEST: 020-V." However, the sheet does not reference the morning reports in any way. It is unclear if this sheet was an actual response to the request, whether the records are unavailable, or whether additional records are forthcoming. In addition, the Veteran has not been notified that the records are unavailable. Nor has he or his attorney been given an opportunity to respond. As such, remand is required. 7. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA examination for his bilateral hearing loss and tinnitus in August 2018. The examiner opined that his tinnitus was at least as likely as not related to service. However, his bilateral hearing loss was not. As rationale for the Veteran's tinnitus opinion, the examiner stated: The Veteran was exposed to excessive noise exposure during service as indicated by conceded noise on active duty. Excessive noise exposure is known to cause tinnitus; there it is at least as likely as not a result of military noise exposure. However, as it relates to the Veteran's bilateral hearing loss, the examiner stated: There is normal hearing on separation with thresholds too law for any permanent significant shift in hearing thresholds to have occurred from entrance. This is evidence of no permanent auditory damage on active duty. No report of decreased hearing in claims file or at separation. Although noise exposure is conceded and the relationship between noise, auditory damage and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone. The opinion is incomplete as it did not address the theory of delayed onset hearing loss. In addition, it is unclear why the Veteran's "excessive noise exposure" was severe enough to have caused tinnitus but not severe enough to have caused bilateral hearing loss. Thus, remand is necessary to obtain further VA medical opinion. The matters are REMANDED for the following action: 1. Confirm there was a response to the April 2020 request for information to the National Archives requesting morning reports for the period from July 1, 1973 to August 31, 1973. 2. If morning reports do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran and his attorney. 3. Obtain a VA addendum opinion from the August 2018 examiner, or another qualified clinician, addressing the nature and etiology of the Veteran's bilateral hearing loss. The need for an in-person examination is left to the discretion of the examiner. After reviewing the entire claims file, the examiner is again asked to opine: (a.) Whether the Veteran's bilateral hearing loss is at least as likely as not related to service. In providing such an opinion, the examiner should address the likelihood of delayed onset hearing loss. The examiner should also address why the Veteran's acoustic trauma was significant enough to cause tinnitus but not hearing loss. A complete rationale for any medical opinion rendered must be provided. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Martha R. Luboch, 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.