Citation Nr: 22016361 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-08 681A DATE: March 22, 2022 ORDER New and material evidence having been received, the petition to reopen the Veteran's claim of service connection for bilateral hearing loss is granted. Entitlement to service connection for sleep apnea, as secondary to service-connected posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A July 2010 rating decision, with notice also in July 2010, denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. An August 2010 notice of disagreement was filed, and a December 2013 statement of the case was issued. The Veteran did not file a Form 9, or formally appeal the claim. The unappealed decision became final. 2. Evidence received since the July 2010 decision is neither cumulative nor redundant of the evidence of record at the time of the last final denial and relates to an unestablished fact necessary to substantiate a claim of service connection of bilateral hearing loss. 3. The weight of the medical evidence of record is in favor of finding the Veteran's obstructive sleep apnea is proximately due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria to reopen a claim of service connection for hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for service connection for obstructive sleep apnea as secondary to service-connected PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from June 1989 to June 1993. This case is before the Board of Veterans' Appeals (Board) from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans' Law Judge at a July 2021 hearing. The Board notes that the Veteran also appealed his claim for depression (04/12/2019 Form 9). He is service connected for an acquired psychiatric disability, PTSD, at a rating of 100 percent (06/23/2021 Rating Decision - Codesheet). As the benefit sought on appeal has been granted, the issue of service connection for depression is no longer before the Board for appellate consideration. As a separate matter, during his hearing, the Veteran testified that he suffered from tinnitus during service as a result of weapon fire associated with his MOS of machine gunner (07/27/2021 Hearing Transcript, pg. 6). The Board notes his tinnitus claim was denied by the July 2010 rating decision, but was not appealed (07/05/2010 Rating Decision Narrative; 04/12/2019 Form 9). A tinnitus claim is not before the Board for consideration. Nonetheless, if the Veteran believes he has new and material evidence sufficient to reopen the previously denied claim, he is encouraged to pursue the claim. Service Connection 1. New and material evidence having been received, the petition to reopen the Veteran's claim of service connection for hearing loss is granted. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). For the purpose of reopening a claim, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran's claim of service connection for hearing loss was denied in a February 1994 rating decision, with notification sent in March 1994 (02/28/1994 Rating Decision; 03/14/1994 Notification Letter). The RO found the evidence of record showed hearing loss in the left ear existed prior to service. The decision was not appealed and became final. In July 2009, the Veteran requested the claim be reopened. The Veteran described in service noise exposure due to his MOS as a machine gunner and firing shoulder held missiles. He asserted this exposure caused hearing loss and tinnitus. The Veteran indicated he was not exposed to damaging noise in his post service employment (07/22/2009 Correspondence). The claim was reconsidered, and the denial continued in July 2010 (07/05/2010 Rating Decision Narrative). The prior denial was continued because the evidence did not show the Veteran's hearing loss was incurred in or aggravated by his active service. The Veteran's service treatment records revealed hearing loss reported during his February 1989 and additional hearing in the high frequency range at 2000 Hz and above was present at the subsequent evaluations. The April 2010 VA examiner opined the current hearing loss reported today is [at] least as likely as not due to combination of previous military noise, medical conditions of annual recurrent ear infections since 1995 and normal aging process. it is difficult to determine or proportionately separate what amount was due to military medical history, and age related. The examiner noted the hearing loss at that time did not meet the regulatory standard for a disability (04/19/2010 VA Examination, pg. 3). The Veteran filed an August 2010 notice of disagreement, and a September 2010 statement asserting that he does not have chronic ear infections as stated by the April 2010 examiner (10/08/2010 VA 21-4138 Statement In Support of Claim). A December 2013 statement of the case was issued continuing the denials for hearing loss and tinnitus. The Veteran did not file a Form 9 appealing the decision, and the denial became final. Since the prior final decision, additional evidence is of record. The Veteran has testified that his hearing loss has advanced, and hearing aids have been recommended (07/27/2021 Hearing Transcript, pgs. 3 and 8). Additionally, August 2020 private audiometric evidence is of record (10/22/2021 Medical Treatment Record - Non-Government Facility). The Board finds that the documentary and testimonial evidence provided by the Veteran is new, as it had not been previously submitted to agency decision makers. The evidence is material as it directly pertains to the basis for the prior final denial, specifically whether the Veteran's hearing loss now meets the regulatory standard for a disability. The Board finds new and material evidence has been received since the July 2010 decision and is sufficient to reopen the claim of entitlement to service connection for hearing loss. Accordingly, the Veteran's petition to reopen the claim of service connection for bilateral hearing loss is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Sleep apnea. The Veteran contends that he has experienced symptoms of sleep apnea since service, to include snoring (07/27/2021 Hearing Transcript, pg. 10). He also contends that his sleep apnea is secondary to his service-connected PTSD (06/19/2019 Correspondence; 06/23/2021 Rating Decision - Codesheet). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A current diagnosis of sleep apnea is of record (07/27/2021). Hearing Transcript, pg. 4; 09/26/2016 Medical Treatment Record - Non-Government Facility). A July 2021 private medical consultation based on a record review has been obtained regarding the Veteran's sleep apnea (10/22/2021 Medical Treatment Record - Non-Government Facility). The private physician opined it is more likely than not that the Veteran's sleep apnea is a direct complication of his PTSD, caused by his active service (10/22/2021 Medical Treatment Record - Non-Government Facility, pg. 2). The practitioner's opinion includes consideration of and citation to medical journal articles and reflects familiarity with the Veteran's medical and service history. As such, the Board finds the opinion highly probative, weighing in favor of the Veteran's claim. Finding the weight of the most probative evidence of record to be in favor of the Veteran's claim, the Board finds entitlement to service connection for sleep apnea, to include as proximately due to service-connected PTSD, is warranted. REASONS FOR REMAND 3. Bilateral hearing loss. The Veteran contends his hearing loss has worsened to the extent that hearing aids are needed. Of record are the results of an August 2020 private audiometry exam (10/22/2021 Medical Treatment Record - Non-Government Facility). Although this examination seems to indicate threshold levels meeting the regulatory requirement for a hearing loss disability, it does not meet the requirements as set forth at 38 C.F.R. § 4.85(a). Notably, it does not include a controlled speech discrimination test utilizing the Maryland CNC list. As such, the Board may not rely on the examination in making a decision on the Veteran's claim. There is also a July 2021 private medical consultation based on a record review of record that includes a positive nexus opinion for hearing loss (10/22/2021 Medical Treatment Record - Non-Government Facility). The private physician opined that it is more likely than not that the Veteran's hearing loss was aggravated by active service (10/22/2021 Medical Treatment Record - Non-Government Facility, pg. 3). This opinion does not appear to be associated with an examination that meets the requirements set forth at 38 C.F.R. § 4.85(a). As such, the Board cannot rely on this opinion in deciding the Veteran's claim. Additionally, the Board notes in his September 2010 statement, the Veteran asserted that he does not have chronic ear infections as noted by the April 2010 examiner (10/08/2010 VA 21-4138 Statement In Support of Claim). In light of the foregoing, the Board finds that a remand is required to obtain a VA examination to assess whether the Veteran's hearing loss meets the regulatory requirements for a disability. Additionally, the Board seeks clarification of the Veteran's medical history as to ear infections. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran's hearing loss. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed hearing loss is a result of service or any incident occurring during service. The examiner should address the July 2021 positive nexus opinion that is of record, and, if possible, clarify the Veteran's medical history with regard to ear infections. Finally, the examiner should address whether left ear hearing loss preexisted service, in light of the audiometric results shown on enlistment. (As this constitutes a defect noted on entrance, the presumption on soundness does not apply.) The examiner should state whether there was any increase in disability in the left ear during service; if so, was this increase clearlyand unmistakably due to the natural progression of the left ear hearing loss? (Continued on the next page) A comprehensive rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should be associated with the claims folder. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is reminded to consider the Veteran's lay reports, and a reason must be provided if the Veteran's lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran's contentions, the examiner should provide them. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.