Citation Nr: 18144323 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-30 268 DATE: October 24, 2018 REMANDED Entitlement to service connection for low back disability is remanded. Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for residuals of traumatic brain injury, to include migraine headaches, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded. REASONS FOR REMAND 1. Entitlement to service connection for low back disability; bilateral knee disability; bilateral hearing loss; tinnitus; residuals of traumatic brain injury, to include migraine headaches; and acquired psychiatric disability, are remanded. The Veteran served on active duty from November 1996 to November 2000. This matter is on appeal before the Board of Veterans Appeals (Board) from an April 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is of record. At the January 2018 Board hearing, the Veteran testified that he has current problems with his low back and bilateral knees that he believes have resulted from a motor vehicle accident, which occurred during service. He indicated that the accident occurred during duty in the Chocolate Mountains in Arizona around 30 days after boot camp in approximately February 1997. He reported that the accident involved his vehicle rolling over, causing strains to his back and knees and a head injury where he lost consciousness. He also indicated that after the accident he was flown by air ambulance to an emergency room (ER), which he thought was located at the Yuma Regional Medical Center (YRMC) in Yuma, Arizona. He noted that ever since the accident he has experienced problems with his back and knees, although he did not seek treatment for these problems during service. The service treatment records do not include any records of any medical treatment following a motor vehicle accident and do not otherwise indicate that the Veteran was in a motor vehicle accident. However, because records of inpatient medical treatment received during service have sometimes been stored separately from the rest of a veteran’s service treatment records, on remand, the agency of original jurisdiction (AOJ) should attempt to obtain any inpatient/clinical records documenting the reported ER treatment. The AOJ should also attempt to obtain any records documenting the reported ER treatment from YRMC. Additionally, the AOJ should obtain the Veteran’s complete service personnel file. If records showing treatment for back and/or knee injuries after the reported motor vehicle accident are obtained and if the records do not establish that the motor vehicle accident constituted willful misconduct, the Veteran should be afforded a VA examination to determine the likely etiology of any current back and/or knee disabilities. Regarding the claims for service connection for bilateral hearing loss and tinnitus, the Veteran was provided a QTC audiological evaluation in relation to these claims in March 2015. This evaluation did not show a hearing loss disability in either ear by VA standards. The examiner also commented that the Veteran had normal hearing entering military service and upon separation from service with no significant threshold shifts; that the Veteran’s noise exposure during service was thus insufficient to cause hearing loss; and that the Veteran’s tinnitus was less likely than not associated with this insufficient level of noise exposure. In making these findings, it does not appear that the examiner accurately construed the results of July 19, 2000 hearing testing, which showed a 15-decibel threshold shift at 4000 Hz in the left ear (i.e. from 10 to 25) and a 10-decibel threshold shift at 4000 HZ in the right ear (i.e. from 10 to 20), as compared with reference hearing test results from November 1996. The report of this testing was accompanied by a notation indicating that these results suggested a significant change in the Veteran’s hearing. Additionally, at the January 2018 Board hearing, the Veteran testified that his hearing had worsened since the March 2015 examination and that he first noticed tinnitus after being knocked out during a bout at the Marine Corps boxing championships. Given that the Veteran’s boxing experience was not considered by the QTC examiner as a potential cause of his tinnitus and given the Veteran’s report of worsening of his hearing loss since the March 2015 examination, on remand, the Veteran should be afforded a new VA audiological evaluation to assess the nature and etiology of any current hearing loss and tinnitus. Regarding residuals of traumatic brain injury, the Veteran testified that he began experiencing headaches during service and that he currently experiences really bad migraine headache about once a month. He indicated that he believed that the headaches may have been caused by the head trauma he experienced during service. Given that the evidence shows that the Veteran was a Marine Corp boxer during service; given that he is competent to report experiencing current headaches; and given that head trauma from boxing and/or a head injury in a motor vehicle accident could potentially result in current headaches or other TBI residuals, on remand, the Veteran should be afforded a VA neurological examination to assess the likelihood that he has any current residual neurological disability from the head trauma he suffered in service. Regarding the claim for acquired psychiatric disability, the Veteran testified that he had been diagnosed with depression by a private physician about 2 or 3 years previously. He also testified that he began experiencing feelings of depression during service and thought it may have resulted from repeated blows to the head. Given the Veteran’s testimony and given that he was a Marine Corps boxer during service, he should be afforded a VA psychiatric examination to determine the likelihood that any current psychiatric disability is related to service, including head trauma experienced therein. Prior to arranging for the above development, the AOJ should ask the Veteran to identify all sources of treatment or evaluation he has received for back disability, knee disability, hearing loss, tinnitus, psychiatric disability and headaches since service and should secure copies of complete records of the treatment or evaluation from all sources appropriately identified. The matters are REMANDED for the following action: 1. Obtain and review the Veteran’s service personnel records, to include any reports of motor vehicle accident from approximately January 1, 1997 to March 31, 1997. 2. Make appropriate attempts to obtain inpatient (i.e. clinical) records documenting any treatment the Veteran received at Yuma Regional Medical Center in Arizona following a motor vehicle accident, which occurred during the time frame between January 1, 1997 and March 31, 1997. 3. Also, after receiving an appropriate release of information from the Veteran, make appropriate efforts to obtain any records directly from Yuma Regional Medical Center of treatment the Veteran received at that facility during 1997. 4. Ask the Veteran to identify all sources of treatment or evaluation he has received for back disability, knee disability, hearing loss, tinnitus, psychiatric disability and headaches since service and secure copies of complete records of the treatment or evaluation from all sources appropriately identified. 5. After the above development has been completed, and if and only if it is established that the Veteran injured his back during a motor vehicle accident in service, schedule him for an examination by an appropriate clinician to determine the nature and etiology of any current low back disability. The examiner should review the claims file in conjunction with the examination. The examiner must provide a medical opinion in answer to the following question: Is it at least as likely as not (i.e. a 50% chance or greater) that any current low back disability is related to the Veteran’s military service, including the motor vehicle accident experienced therein? The examiner should provide a rationale for the opinion provided. 6. After the above development in 1-4 has been completed, and if and only if it is established that the Veteran injured his right and/or left knee during a motor vehicle accident during service, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current right and/or left knee disability. The examiner should review the claims file in conjunction with the examination. The examiner must provide opinions in answer to the following questions: Is at least as likely as not (i.e. a 50% chance or greater) that any current knee disability is related to the Veteran’s military service, including the motor vehicle accident experienced therein? 7. Schedule the Veteran for a VA audiology evaluation to determine the nature and etiology of any current bilateral hearing loss and tinnitus. The claims file should be reviewed by the examiner in conjunction with the examination. The examiner should take a specific history from the Veteran concerning the onset of hearing loss and tinnitus and the subsequent course of these problems. The examiner should also take a history from the Veteran concerning the nature and extent of his boxing activity during service. The examiner is then asked to provide medical opinions in answer to the following questions: A) Is it at least as likely as not (i.e. a (i.e. a 50% chance or greater) that any current hearing loss is related to the Veteran’s military service, including the head trauma he experienced therein? B) Is it at least as likely as not (i.e. a 50% chance or greater) that any current tinnitus is related to the Veteran’s military service, including the head trauma he experienced therein? The examiner should provide a rationale for each medical opinion. 8. Schedule the Veteran for a VA neurological examination to determine the nature and etiology of the Veteran’s headaches and any other potential residuals of head trauma. The examiner must review the claims file in conjunction with the examination. The examiner should take a specific history from the Veteran concerning the onset of his headaches and any other neurological symptoms and the subsequent course of these problems. The examiner should also take a history from the Veteran concerning the nature and extent of his boxing activity during service. The examiner should assign all appropriate neurological diagnoses. The examiner should then provide opinions in answer to the following questions: A) Is it at least as likely as not (i.e. a 50% chance or greater) that any current headache disability is related to the Veteran’s military service, including the head trauma he experienced therein? B) For any other neurological disorder diagnosed (aside from headaches), is at least as likely as not that such disability is related to the Veteran’s military service, including the head trauma he experienced therein? The examiner should provide a rationale for each medial opinion. 9. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any current psychiatric disability. The examiner must review the claims file in conjunction with the examination. The examiner should take a specific history from the Veteran concerning the onset of any psychiatric symptoms and the course of any psychiatric problems. The examiner should also take a history from the Veteran concerning the nature and extent of his boxing activity during service. The examiner must then provide a medical opinion in answer to the following question: Is it at least as likely as not (i.e. a 50% chance or greater) that any current psychiatric disability is related to the Veteran’s military service, including the head trauma he experienced therein? The examiner should provide a rationale for the medical opinion. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel