Citation Nr: 18142862 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-44 314 DATE: October 17, 2018 REMANDED 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for right ear retracted tympanic membrane is remanded. 3. Entitlement to service connection for tinnitus is remanded. 4. Entitlement to service connection for hernia repair is remanded. 5. Entitlement to service connection for a right knee disability is remanded. 6. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND After review of the record, the Board finds that further development is necessary prior to adjudicating the Veteran’s claims. The Board notes that, initially on appeal as well, was the issue of service connection for a left knee disability. However, this claim was granted during the course of this appeal and, as such, represents a full grant of the benefits sought. Thus, that claim is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran had several periods of active duty service to include the Air Force from September 11, 1978 to September 10, 1982 and from June 1, 1987 to December 8, 1987; Army National Guard from October 3, 2001 to March 28, 2002; Army from May 25, 2002 to September 26, 2002; and the Air National Guard from October 1, 2002 to May 28, 2004. The Veteran had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). As a preliminary matter, the Board notes that the record reflects the Veteran entered active duty in 1978 and served until 1982 with subsequent periods of active duty, ACDUTRA, and INACDUTRA as indicated above. However, the periods for ACDUTRA and INACDUTRA have not been verified. Such development is necessary in this case. As such, a remand is necessary to verify all periods of ACDUTRA and INACDUTRA with the Air Force Reserves, Air National Guard, and Army National Guard, to include specific dates, as well as obtain outstanding STRs for the Veteran’s periods of ACDUTRA and INACDUTRA, if applicable. For clarity, the specific bases for remand of each individual issue will be discussed as applicable. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss. The Board notes initially that acoustic trauma is conceded based on the Veteran’s MOS of security specialist and avionic instrument specialist. Therefore, with regard to the elements of service connection, an in-service injury has been met. Pertaining to a nexus, the Veteran received a VA examination in March 2013 to determine the etiology of his bilateral hearing loss. The examiner diagnosed the Veteran with bilateral hearing loss and found that his hearing loss was not related to service. In support thereof, the examiner determined that the Veteran’s hearing was normal for his active duty dates upon enlistment and separation without any threshold shifts. The examiner further determined that there is no reasonable basis for delayed-onset hearing loss due to acoustic trauma or noise-induced hearing loss. Contrary to the examiner’s findings, the Board notes that the Veteran’s 1982 exit audiogram reflects some degree of hearing loss for the left ear as the results at 3000 Hertz (Hz) was at 25 decibels (dB), as opposed to 0 Hz upon entrance in 1978. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss). Moreover, during a periodic examination in April 1999, the Veteran was noted as having left ear hearing loss in the 6000 Hz range. Further, in a November 2003 Report of Medical History, the Veteran’s audiograms showed some degree of hearing loss bilaterally with thresholds over 20 decibels. To that end, the Board notes that generally, service connection may be granted for disability or injury incurred in or aggravated by active military service; however, service connection may also be granted for an injury or disease incurred or aggravated during a period of ACDUTRA. Further, service connection may be granted for an injury incurred or aggravated during a period of INACDUTRA. See 38 U.S.C. §§ 101(24)(B), 101(24)(C), 1110, 1131; 38 C.F.R. §§ 3.6(a), 3.303 (2017). Given that the evidence shows hearing loss for the left ear during a period of active duty in 1982, bilaterally in 2003 during active duty, and a possible showing of hearing loss during a period of ACDUTRA or INACDUTRA, an addendum opinion is warranted to consider the relationship between the Veteran’s current hearing loss and his noted hearing loss in service. 2. Entitlement to service connection for tinnitus is remanded. Concerning the Veteran’s claim of service connection for tinnitus, the Board notes that during the Veteran’s March 2013 audiology exam, the examiner found a negative nexus opining that the Veteran’s tinnitus was more likely than not the result of a motor vehicle accident post-service. However, the Board finds the opinion inadequate. In so finding, the Board notes that the examiner opined that the Veteran had normal hearing while in service, and that records are silent for tinnitus. As noted above, thresholds in active duty service show some degree of hearing loss for the Veteran’s left ear, and the Veteran exhibited hearing loss bilaterally while on active duty in 2003. Moreover, although the examiner noted that records are silent for tinnitus, the evidence shows that the Veteran complained of tinnitus during a period of active duty in October 2002. As the Veteran’s in-service hearing loss and tinnitus complaint was not considered in the rendered opinion, an addendum opinion is warranted. 3. Entitlement to service connection for right ear retracted tympanic membrane is remanded. With regard to the Veteran’s claim of service connection for right ear tympanic membrane, the Board notes that the March 2013 examiner also found that the Veteran’s right ear tympanic membrane condition was not related to service. As referenced by the examiner, the Veteran initially complained of right ear pain during active duty in 1982. The examiner explained that this incident with the Veteran’s right ear involved cerumen extraction with no indication of complications after the procedure. The examiner further noted that the Veteran’s retracted ear drum are likely caused by ear infections the Veteran sustained in 2001 and 2002. Although the examiner provided a detailed rationale, the Board finds the opinion inadequate. As noted by the examiner, the Veteran had incidents with his right ear in 1982, 2001, and 2002. While the examiner found the likely cause of the Veteran’s tympanic membrane condition was due to ear infections, the examiner did not opine as to whether the Veteran’s initial ear complaint was not aggravated by his subsequent ear infections resulting in right ear tympanic membrane. Notably, the Veteran’s subsequent period in October 2002 was during active duty, and the October 2002 medical record references the Veteran’s follow-up for his ear as a line of duty injury. Therefore, an opinion should be obtained concerning aggravation of the Veteran’s right ear condition by a subsequent period of active duty, ACDUTRA, or INACDUTRA. 4. Entitlement to service connection for hernia repair is remanded. The Veteran is seeking service connection for a hernia condition. The evidence shows a complaint of abdominal pain on September 9, 2002 with subsequent hernia surgery on October 10, 2002. In a February 2014 VA examination, the examiner found a negative nexus opining that the Veteran’s hernia existed prior to service and was not aggravated beyond its natural progression during service. However, the Board finds the opinion inadequate as the opinion was rendered upon inaccurate facts. The Board notes that the RO denied the Veteran’s claim contending that his initial complaint of hernia failed to take place during active duty; however, this is incorrect. As noted previously, the Veteran had active duty service from May 25, 2002 to September 26, 2002 which is evidenced by his DD-214 of record. Medical evidence shows that the Veteran complained of abdominal pain and/or hernia on September 9, 2002, with subsequent surgery in October 2002, both during periods of active duty. The Board notes that the same evidence shows that the Veteran has had the complaint for over a year which may indicate a pre-existing injury or disease; however, the examiner did not consider this evidence. Therefore, the Board finds that an addendum opinion is necessary to determine the etiology of the Veteran’s hernia condition with consideration of a complete an accurate account of the Veteran’s factual background. 5. Entitlement to service connection for a right knee disability is remanded. With regard to the Veteran’s claim of service connection for a right knee disability, service treatment records show a complaint of bilateral knee pain during active duty in January 1979. Additionally, the Veteran complained of right knee pain and tenderness after slipping on ice in March 1993; and, in June 2004, the Veteran complained of right knee soreness. In March 2013, the Veteran received a VA examination for his bilateral knees where he reported that he fell in 2002 during PT and hit both knees. The Veteran was diagnosed with degenerative joint disease of the left knee, and right knee strain. With regard to a nexus, the examiner found that the Veteran’s left knee was related to service, but that his right knee strain was at least as likely as not related to his single episode in 1993. As noted above, the Veteran had several periods of active duty with periods of ACDUTRA and INACDUTRA that have not been verified. Although the examiner found a negative nexus between the Veteran’s current right knee condition and his knee complaint from 1993, the examiner did not provide a medical opinion as to whether the Veteran’s right knee complaint during active duty in 1979 may have been aggravated during a subsequent period of service, to include the 1993 incident. As the Veteran’s periods of ACDUTRA and INACDUTRA have not been verified, a remand is warranted to determine whether the Veteran’s right knee complaints in 1993 and 2004 occurred during a period of ACDUTRA or INACDUTRA, and/or whether his right knee was aggravated during said periods of service. 6. Entitlement to service connection for a low back disability. The Veteran is seeking service connection for a low back disability. Service treatment records (STRs) show that the Veteran complained of back pain in June 2001 and June 2004. In a February 2014 VA examination, the examiner diagnosed the Veteran with degenerative arthritis of the spine and found that the Veteran’s back disability was not aggravated by the Veteran’s hernia surgery; however, the Board finds the opinion inadequate for adjudicating the Veteran’s claim. First, the Board notes that the examiner used the incorrect standard in finding a negative nexus, as there is no indication that the Veteran has asserted that his back condition was related to his hernia surgery. Additionally, as noted previously, service connection may be granted for an injury incurred or aggravated during a period of ACDUTRA or INACDUTRA. Given that the Veteran’s complaints in June 2001 and June 2004 may have been during periods of ACDUTRA or INACDUTRA, said periods should be verified for service, and a medical opinion should be obtained upon verification of these periods to determine whether the Veteran’s back disability is etiologically related to service. Additionally, in a May 2010 written statement, the Veteran reported that he injured his back while deployed to Kuwait after falling from a military truck, and that his back pain was caused by long hours in the cockpit of an aircraft while performing inspections. The Board notes that the examiner considered the Veteran’s report of falling from a truck; however, the examiner based his negative nexus opinion in part on the absence of medical documentation evidencing such. To that end, the Board notes that the Veteran is competent to report an in-service injury and that lay evidence should be considered in medical opinions. Relying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, a new examination and opinion is warranted. Accordingly, the matters are REMANDED for the following action: 1. Take all necessary steps to verify all periods of ACDUTRA and INACDUTRA for the Veteran between 1987 to 2004 with the Air Force Reserve, Air National Guard, and Army National Guard, to include obtaining military personnel records from the appropriate sources. Efforts to obtain these records and/or responses from each contacted entity should be documented in the claims file. 2. Upon verification, obtain outstanding service treatment records for the Veteran’s periods of ACDUTRA and INACDUTRA. Efforts to obtain these records and/or responses from each contacted entity should be documented in the claims file. 3. Thereafter, obtain an addendum opinion by an appropriate medical professional to prepare an opinion with respect to the nature and etiology of the Veteran’s claimed bilateral hearing loss, tinnitus, and right ear tympanic membrane condition. Afford the Veteran a VA examination only if deemed necessary by the examiner. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. Provide the VA examiner a list of all active duty, ACDUTRA and INADUCTRA periods. 4. Following a review of the claims file and medical history, the VA examiner must offer an opinion as to the following: a) Is there clear and unmistakable evidence that the Veteran’s bilateral hearing loss, tinnitus, or right ear tympanic membrane pre-existed any of the Veteran’s periods of active service including September 1978 to September 1982, June 1987 to December 1987, October 2001 to March 2002, May 2002 to September 2002, and October 2002 to May 2004? b) IF EITHER CONDITION PRE-EXISTED ANY OF THESE PERIODS OF ACTIVE SERVICE, is there clear and unmistakable evidence that any identified right or left hearing loss condition, tinnitus, and/or right ear tympanic membrane was NOT aggravated (permanently worsened) beyond the natural progression as a result of a period of active duty, active duty for training (ACDUTRA), or by any injury sustained during a period of inactive duty for training (INACDUTRA)? c) IF THE CONDITIONS DID NOT PRE-EXIST A PERIOD OF ACTIVE SERVICE, is it at least as likely as not (a 50% or greater probability) that either disability had its onset during active service or is otherwise related to active service, OR that either disability was caused or permanently aggravated (permanently worsened) beyond the natural progression as a result of a period of active duty for training (ACDUTRA) or by any injury sustained during a period of inactive duty for training (INACDUTRA). 5. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of the Veteran’s hernia condition. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. Provide the VA examiner a list of all active duty, ACDUTRA and INADUCTRA periods. 6. Following a review of the claims file and medical history, the VA examiner must offer an opinion as to the following: a) Is there clear and unmistakable evidence that the Veteran’s hernia condition pre-existed any of the Veteran’s periods of active service? b) IF THE CONDITION PRE-EXISTED ACTIVE DUTY SERVICE, is there clear and unmistakable evidence that the condition was NOT aggravated (permanently worsened) beyond the natural progression as a result of a period of active duty, active duty for training (ACDUTRA), or by any injury sustained during a period of inactive duty for training (INACDUTRA)? c) IF THE CONDITION DID NOT PRE-EXIST A PERIOD OF ACTIVE SERVICE, is it at least as likely as not (a 50% or greater probability) that the disability had its onset during active service or is otherwise related to active service, OR that the disability was caused or permanently aggravated (permanently worsened) beyond the natural progression as a result of a period of active duty for training (ACDUTRA) or by any injury sustained during a period of inactive duty for training (INACDUTRA)? 7. Schedule the Veteran for a VA examination to determine the nature and etiology of his right knee and low back disabilities. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. Provide the VA examiner a list of all active duty, ACDUTRA and INADUCTRA periods. a) Is there clear and unmistakable evidence that the Veteran’s right knee and/or back condition pre-existed any of the Veteran’s periods of active service? b) IF EITHER CONDITION PRE-EXISTED ACTIVE DUTY SERVICE, is there clear and unmistakable evidence that the condition was NOT aggravated (permanently worsened) beyond the natural progression as a result of a period of active duty, active duty for training (ACDUTRA), or by any injury sustained during a period of inactive duty for training (INACDUTRA)? c) IF THE CONDITION DID NOT PRE-EXIST A PERIOD OF ACTIVE SERVICE, is it at least as likely as not (a 50% or greater probability) that the disability had its onset during active service or is otherwise related to active service, OR that the disability was caused or permanently aggravated (permanently worsened) beyond the natural progression as a result of a period of active duty for training (ACDUTRA) or by any injury sustained during a period of inactive duty for training (INACDUTRA)? The examiner(s) must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. (Continued on the next page)   8. After completion of the above, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. GAYLE E. STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel