Citation Nr: 1335008 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-27 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for gastroenteritis (claimed as stomach problems). 3. Entitlement to service connection for residuals of a muscle disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his former spouse, P.T. ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to service connection for bilateral hearing loss, gastroenteritis, and residuals of a muscle disorder. The Veteran filed a timely notice of disagreement with these three issues, and in June 2010, the RO issued an statement of the case (SOC) addressing all three service connection issues. In June 2010, the Veteran submitted a substantive appeal (VA Form 9) on which he indicated that he was only appealing the claim for service connection for bilateral hearing loss. Thereafter, the RO and the Veteran's representative (in a VA Form 646) basically acknowledged that entitlement to service connection for bilateral hearing loss was the only issue on appeal. In March 2013, the Veteran and his former spouse, P.T., testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. At the hearing, when the undersigned stated that there was only one issue on appeal (service connection for bilateral hearing loss), the Veteran's representative indicated, that he thought the other two issues (service connection for gastroenteritis and for a muscle condition) were included with the appeal. In light of the Veteran's representative's statements, made on his behalf, as well as the testimony of the Veteran at the hearing, the requirement that there be a substantive appeal regarding the two other issues is deemed waived. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the filing period for a substantive appeal in a claim for VA benefits is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly). Accordingly, these two issues (gastroenteritis and a muscle disorder) remain on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND 1. Bilateral Hearing Loss The Veteran contends that service connection for bilateral hearing loss is warranted because he was exposed to excessive noise during his active service when he was a mechanic and working in a closed shop and exposed to noise from industrial grade equipment and car and truck engines. He also contends that he has had bilateral hearing loss since service, and that post-service he has worked as a roofer for over 25 years, in a factory for 2 years, as a volunteer fireman for 10 years, and as a tow truck driver for over 20 years. Service treatment records (STRs), which include the Veteran's pre-induction examination report and his separation examination report, show no report of or finding of any hearing loss. Service personnel records show that during his period of active service, the Veteran's military occupational specialty (MOS) was listed as "mech maint appr", "wheel veh mech helper", and "powerman". The Board acknowledges that the lack of any evidence showing the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service (38 C.F.R. § 3.385) is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the United States Court of Appeals for Veterans Claims has held that where there is no evidence of the Veteran's hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). VA audiological testing conducted in May 2008, confirms that the Veteran does have bilateral hearing loss disability for VA purposes, under 38 C.F.R. § 3.385. With regard to a relationship between bilateral hearing loss and noise exposure in service, in support of his claim, the Veteran has reported being exposed to noise from industrial grade equipment and car and truck engines in his duties as a mechanic. Such lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Thus, the Veteran is competent to report that he was exposed to noise in service and that he has had hearing loss since then. What is missing from this case is competent medical evidence linking the Veteran's current bilateral hearing loss disability to his exposure to excessive noise in service. At the VA examination in May 2008, the examiner opined that the Veteran's hearing loss was not caused by or result of noise exposure while in service. The examiner's rationale for the opinion was that the Veteran's separation hearing test indicated that he had normal hearing in both ears, and that the Institute of Medicine (IOM) Report (National Academy of Sciences, 2006) indicated that there was no scientific basis for delayed or late onset noise-induced hearing loss. The United States Court of Appeals for Veterans Claims has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). After reviewing the May 2008 VA examination report, the Board concludes that such examination is inadequate and another is warranted. In that regard, the Board finds that in rendering the opinion and rationale, the examiner did not acknowledge the Veteran's competency to report exposure to noise in service and that he has had hearing loss in his ears since then. Thus, this matter should be remanded in order to obtain a supplemental opinion, or if not available, another VA examination with opinion. The VA examiner should be advised as to the Veteran's competency to report lay-observable events (exposure to noise in service) and on the presence of his symptoms (hearing loss), and should again be asked to render an opinion, with rationale, as to whether his hearing loss may be related to noise exposure in service. 2. Gastroenteritis (claimed as stomach problems) The Veteran essentially contends that he had stomach problems in service that have continued since his separation from service. STRs show that on January 7, 1970, the Veteran was treated for complaints of headaches and diarrhea, and the diagnosis was gastroenteritis. On January 17, 1970, he was seen for complaints of intermittent diarrhea for two weeks, nausea and vomiting for one day, a queasy abdominal feeling, and the diagnosis was gastroenteritis. His separation was negative for any report or finding of gastroenteritis or any gastric problem. Post-service private treatment records suggest that the Veteran has had various stomach-related complaints. In November 1977 he was seen for vomiting and nausea, and the diagnosis was possible enteritis with appendicitis. In January 1979, he complained of upper and lower abdominal distress with some nausea, but no diarrhea. In September 1983, a private physician, Dr. Barancik, noted that the Veteran was first seen in January1982 for a six to twelve month history of mid-abdominal discomfort with varied ability in his bowel habits. The doctor's impression was that the Veteran had functional GI disturbance secondary to stress. In October 1983, the Veteran was seen for stomach problems. In June 1984, it was noted that he had gastric symptoms, especially with spaghetti, and took antacids. In July 1992, an AP view of the abdomen revealed an impression of questionable duodenitis. In November 1998, the Veteran was treated for sigmoid diverticular disease, but at that time it was noted that the Veteran had a long term history over many, many years of severe left lower quadrant pain, and while he had numerous workups in the past for this, no obvious etiology had been found. It was noted that he had a medical history positive for GERD (gastroesophageal reflux disease). In May 1999, he complained of upper abdominal pain for a year. In September 1999, he was treated for severe GERD. Subsequent VA treatment records show that the Veteran continued to complain of stomach problems, and his medical history included notations of GERD and dyspepsia. In February 2004, he complained of a stomach problem that was getting worse, and that his acid reflux was worse. A few days later in February 2004, he complained stomach trouble, a sore spot on the left epigastric area, with bloating for the past week, with nausea. The assessment was GERD and chronic epigastric pain. In support of his claim, the Veteran and his former spouse testified in March 2013 that he had stomach problems/complaints since service. He also submitted statements from his former spouse, his sister, and a friend, who all essentially reported that the Veteran did not have stomach problems prior to service, but that after service he had stomach complaints/problems and he still has such problems. In light of the Veteran's in-service treatment for gastroenteritis, his competent and credible contentions that he had stomach problems since service, and the post-service treatment records showing ongoing complaints and treatment related to his stomach problem complaints, the Board concludes that a remand is necessary for a VA examination/opinion. 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Residuals of a Muscle Disorder The Veteran essentially contends that he has a current muscle disorder that had an onset in service and which has caused him ongoing pain, achiness, and stiffness symptoms since service. STRs show that in May 1968, the Veteran continued to complaint of pain in the feet. Pain medication was prescribed. X-rays were noted to be negative for stress fractures. In May 1968, he also complained of arch pain, and claimed his arch supports were too big. Later in May 1968, the Veteran reported that his foot pain persisted, and that he now had pain in the left knee. In June 1968, he was seen in the dispensary for his "feet and arthritis". He reported that his right knee sometimes bothered and sometimes not. The plan was to rule out a stress fracture to the heel, and an x-ray was negative. The Veteran was prescribed supports. In September 1968, he was seen for complaints of pain in his left foot, for two weeks, without injury. An x-ray was negative and he had no swelling. He was seen in the podiatry clinic and the assessment was suspect old residual soft tissue injury, bruise, or sprain. In January 1969, he complained of a 10 year history of possible arthritis, with treatment by a civilian doctor (Dr. Gersten) in Illinois. However, it was also noted that a letter from Dr. Gersten made no mention of any type of arthritis, but stated that the Veteran was treated for left ankle sprain. Physical examination revealed no evidence of arthritis. In February 1969, the Veteran reported pain in his left foot, right shoulder, and right hand. It was noted that he had been seen many times before for the same condition. In June 1969, he was referred to orthopedics when he complained of pains in the feet, ankles, knees, and shoulders, that was worse with weather. The impression was pain, etiology unknown, of the right shoulder and left foot. In May 1969, the Veteran complained of right shoulder pain on abduction, and the impression was probable tendonitis. In July 1969, the Veteran complained of pain on the left side of chest. An x-ray was normal, and the diagnosis was muscular pain. On his separation examination in February 1970, the Veteran denied foot trouble and a "trick" or locked knee, and clinical evaluation of his upper and lower extremities and his feet was normal. Post-service private treatment records show that in June 1978, the Veteran reported problems with a stiff neck. In April 1979, he complained that the pain in his knee was worse since he had surgery over a year ago, and that he now had pain in the medial side of the left leg. In October 1983, he complained that his left knee was still sore, and was not helped by Motrin 600. In July 1984, the Veteran was given medication for joint swelling and pain. In a private treatment record dated in July 1999, it was noted that the Veteran had seen "Dr. Olsen" for something resembling fibromyalgia, but did not tolerate Paxil as it made him too sleepy and depressed. VA treatment records show that in September 2003, the Veteran complained he had developed muscle pain all over his body, but not the same soreness he had in the past. In February 2004, he complained that his muscle pain of the back, neck, and shoulders was getting worse. A few days later, he was examined, and he complained of fatigue for the past year and joint stiffness periodically. He pointed to points on his back that were sometimes painful and that he might have depression that might play a role in his lack of energy and fatigue. In a notice of disagreement submitted in September 2008, the Veteran reported that his doctors were still testing for his muscle problems, and that he would produce evidence as soon as a diagnosis was established. He indicated he had been having these problems ever since service, but no one could diagnose exactly the problem. In March 2013, the Veteran testified that his muscle disorder causes him to have stiffness and achiness, but that his symptoms have yet to be given a diagnosis. He denied a diagnosis of fibromyalgia, but indicated that he was working on daily down a diagnosis. He testified that in service he was treated for muscle pains on several occasions, and was given aspirin or Motrin. He indicated that he did not seek treatment for this condition upon his discharge from service, and that he did not first start seeking treatment for his muscle disorder/condition for about a year after he was out of service. He reported he was first treated by private doctors, but he had been able to get copies of these records. He testified that his muscle condition caused aching, cramping, and burning in some of his joints, but not all. He testified that his feet felt like they swell up, but that they were not really swollen, but felt like there was a lot of pressure. He testified that his hands got crampy and achy. He indicated his doctors had not diagnosed anything yet, and they checked him for fibromyalgia once, but did not think that was the problem. In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). What is missing from this service connection claim is competent evidence of a current muscle condition or disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, the Board notes that VA is not generally authorized to grant service connection for symptoms alone, such as pain, without an identified basis for the symptoms. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Herein, after reviewing the record and the Veteran's statements, the Board finds that the Veteran is competent to report on his ongoing muscle symptoms and complaints, and that his statements are credible in light of the medical evidence of record - as highlighted above. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, the record reflects that the Veteran has indicated, as recent as March 2013, that a muscle condition has yet to be diagnosed, but that he was working on this daily. He also indicated that a doctor had evaluated him for fibromyalgia, but they did not think that was the problem. In light of his assertions and the possibility of additional relevant medical evidence, the Board finds that a remand is warranted in order to attempt to obtain any such evidence. While the lack of any current muscle disability is problematic, the Board also notes that the Veteran appears to have had basically unexplained muscle and/or joint pains in service, and has complained of such muscle and/or joint pain since service. Further, while no pertinent muscle or joint disability has been show, there is a suggestion in the record that there may be additionally potentially pertinent medical records to be obtained. Also, on remand, if a current muscle disorder/disability is shown, the Veteran should be scheduled for a VA examination with opinion. See McLendon v. Nicholson, supra. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide updated information regarding any recent treatment he may have received regarding his bilateral hearing loss, gastroenteritis or other stomach problems, and/or a muscle disorder or condition. This should specifically include any doctors who have been trying to diagnosis the Veteran's muscle condition, to include a Dr. Olsen mentioned by the Veteran. With any assistance needed from the Veteran, obtain any named additional pertinent records and associate them with the claims folder. Negative replies should be requested. 2. Forward the claims folder, including a copy of this remand, to an appropriate examiner for a supplemental opinion regarding the claim for service connection for bilateral hearing loss. Request that the examiner review the claims folder, and note that such review has been accomplished. a. The examiner should be made aware of the Veteran's description of noise exposure before, during, and after service, and be advised as to his competency to report lay-observable events (i.e., exposure to excessive noise) and on the presence of symptoms (i.e., hearing loss). b. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., to a probability of 50 percent or greater) that any current hearing loss had its onset in service or is causally related to excessive noise exposure in service, or whether such onset or causation is unlikely (i.e., less than a 50-50 probability). The examiner must explain the rationale for any opinions given. The examiner should provide additional commentary regarding the Veteran's competent and credible reports of in-service noise exposure as a mechanic, and in-service hearing loss he reportedly experienced. c. If any opinion requested above cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. d. If the requested opinions cannot be provided without an examination, then such examination should be scheduled for the Veteran and the examiner should be asked to render the requested medical opinion(s) noted above. 3. Schedule the Veteran for an appropriate VA examination in order to assess the nature and probable etiology of any current gastric or stomach disability. The claims file must be made available to the examiner for review. The examiner should opine as to whether it is at least as likely as not (i.e., to a probability of 50 percent or greater) that any current gastric or stomach disability is related to service. The examiner must explain the rationale for any opinion given. The examiner should provide additional commentary regarding the Veteran's competent and credible reports of in-service and post-service stomach problems and complaints. If any opinion requested above cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. 4. If additional competent medical evidence is obtained showing a current muscle disability/disorder, schedule the Veteran for an appropriate VA examination to determine the nature and probable etiology of such muscle disability/ disorder. The claims folder must be made available to examiner, and the examination report should reflect the examiner's review of the claims folder and of his/her consideration of the Veteran's documented medical history and assertions. All necessary diagnostic tests and/or studies should be conducted, and all clinical findings should be noted. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., to a probability of 50 percent or greater) that the diagnosed muscle disability/disorder had its onset in service or is causally related to the complaints of pain in service, or whether such onset or causation is unlikely (i.e., less than a 50-50 probability). In answering this question, the examiner should be reminded of the Veteran's competency to report on the presence of symptoms during and after service; and to report that his symptoms have continued from service to the present. The examiner must provide supporting rationale for all opinions given. If any opinion requested above cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. 5. Once the above-requested development has been completed, the claims must be readjudicated. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, and be given an opportunity to respond to the SSOC. The case must then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).