Citation Nr: 18149646 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 14-05 673 DATE: November 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertensive heart disease is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. FINDING OF FACT The Veteran’s current bilateral hearing loss had its onset in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from October 1973 to October 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal of January 2010 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The January 2010 RO decision denied service connection for bilateral hearing loss (listed as hearing loss); a low back disability (listed as lower back pain); a right leg disability (listed as bilateral leg pain); a left leg disability (listed as bilateral leg pain); a right ankle disability (listed as an ankle condition); hypertension; diabetes mellitus (listed as diabetes mellitus, type 2); and for a gastrointestinal disorder, to include postoperative residuals of an ileostomy, with a small bowel resection, and a colectomy for obstructing sigmoid diverticular disease (listed as status post a take-down ileostomy, with a small bowel resection, and status post an abdominal colectomy for obstructing sigmoid diverticular disease). The November 2012 RO decision denied service connection for a psychiatric disorder, to include PTSD) (listed as PTSD). As there are multiple other psychiatric diagnoses of record, the Board finds that it is more appropriate to characterize the claim broadly as one of entitlement to service connection for a psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In November 2016, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains issues of entitlement to service connection for hypertension; diabetes mellitus; a gastrointestinal disorder, to include postoperative residuals of an ileostomy, with a small bowel resection, and a colectomy for obstructing sigmoid diverticular disease, and for a psychiatric disorder, to include PTSD, which may be affected by the resolution of Procopio, the Board will “stay” or postpone action on those matters. In May 2018, the Board requested a Veterans Health Administration (VHA) opinion, as to the issue of entitlement to service connection for bilateral hearing loss, and the VHA opinion was obtained in August 2018. In August 2018, the Veteran and his representative were provided with a copy of the October 2017 VHA opinion. In October 2018, the Veteran’s representative submitted additional argument in support of his appeal. Bilateral Hearing Loss Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). Impaired hearing will be considered to be a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2016). One requirement for service connection is the current existence of the claimed disability. With regard to hearing loss, 38 C.F.R. § 3.385 defines what constitutes the current existence of a hearing loss disability. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran is service-connected for tinnitus. The Veteran contends that he has bilateral hearing loss that is related to service. He specifically maintains that he has bilateral hearing loss as a result of acoustic trauma during his period of service. He reports that his duties in service consisted of being an infantryman and a primary marksmanship instructor and that he was exposed to acoustic trauma in both positions. The Veteran indicates that he fired weapons with both hands and that he did not use any hearing protection, and that he was also exposed to noise from mortar rounds and grenades. He further refers to an explosion that occurred approximately fifty yards away from him during service. The Veteran essentially reports that his bilateral hearing loss began during service and has continued since that time. The Veteran served on active duty in the Marine Corps from October 1973 to October 1977. His DD Form 2014 lists his occupational specialty as a rifleman. His service personnel records show primary duties including as a rifleman, an automatic rifleman, and as a squad leader. Therefore, the Veteran’s acoustic trauma is conceded for the purposes of this decision. The Veteran’s service treatment records do not specifically show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385 (2017). Post-service private and VA treatment records, to include an examination report, show that the Veteran has bilateral hearing loss under the provisions of 38 C.F.R. § 3.385. The Board determined that opinions provided by VA examiners, pursuant to an October 2009 VA audiological examination report, and a January 2014 VA examiner report, respectively, were insufficient to decide the Veteran’s claim on the merits and in May 2018 sought an opinion from a VHA expert as to the etiology of the Veteran’s bilateral hearing loss. A VHA opinion, received in August 2018, was provided by an otolaryngologist. The VHA expert discussed the Veteran’s medical history in some detail. The expert indicated that it was his opinion that since the Veteran’s acoustic trauma had been conceded while in service, the hearing loss that he had was more than 50 percent likely as not to be service-connected. The Board finds that August 2018 opinion provided by the VHA expert is the most probative opinion of record. The opinion provided by the VHA expert supports the Veteran’s claim. As such, service connection for bilateral hearing loss is warranted. As the Board has granted direct service connection in this matter, it need not discuss other theories of service connection. REASONS FOR REMAND The remaining issues on appeal are entitlement to service connection for a low back disability; a right leg disability; a left leg disability; and for a right ankle disability, as well as the issues of entitlement to service connection for sleep apnea; hypertensive heart disease; a right shoulder disability; and for a left shoulder disability. The Veteran contends that he has a low back disability; a right leg disability; a left leg disability; and a right ankle disability, that are all related to service. He specifically maintains that he suffered low back problems; right and left leg problems; and right ankle problems, as a result of field exercises, marching, and hiking, as well as loading and unloading cargo, during service. The Veteran also reports that he fell off a tank while serving in Australia and injured his back, and apparently, both legs. He further indicates that he injured his right ankle during service when he rolled it during physical training. The Veteran essentially asserts that he suffered low back problems; right and left leg problems; and right ankle problems, during service and since service. The Veteran is competent to report that he suffered low back problems; right and left leg problems; and right ankle problems, during and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran served on active duty in the Marine Corps from October 1973 to October 1977. The Veteran’s service treatment records indicate that he was treated for a left leg problem, and for right ankle problems during service. Such records do not specifically show treatment for low back problems and right leg problems. A June 1975 treatment entry notes that the Veteran reported that he was playing handball and that he twisted his right ankle. The Veteran stated that the pain was located on the anterior part of the lower tibia. The examiner indicated that there was some swelling noted and that there was a knot in the same area. The impression was a strained muscle. A subsequent June 1975 entry indicates that the Veteran was seen for a painful right ankle. He reported that he had continued swelling and pain in the right ankle. The impression was a muscle strain. Another June 1975 treatment entry, on that same day, notes that the Veteran complained of a pain in his upper left leg. He indicated that he was performing stretching exercises and that, the next day, he felt his muscle bunch up in the anterior port of the left thigh close to the groin. The impression was cramps. Post-service private and VA treatment records do not specifically show treatment for low back problems; right and left leg problems; or right ankle problems. The Board notes that the Veteran has not been afforded a VA examination as to his claimed low back disability; right leg disability; left leg disability; and right ankle disability. Therefore, the Board finds that Veteran has not been afforded a VA examination, with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims file, as to his claims for service connection for a low back disability; a right leg disability; a left leg disability; and for a right ankle disability. Such an examination must be accomplished on remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Board notes that an October 2016 RO decision denied service connection for sleep apnea, hypertensive heart disease, right shoulder and left shoulder. In November 2016, the Veteran expressed disagreement with the October 2016 RO decision, as to those issues. The Board observes that the RO has not issued a statement of the case as to the issues of entitlement to service connection for sleep apnea; hypertensive heart disease; a right shoulder disability; and for a left shoulder disability. Under the circumstances, the Board finds it necessary to remand those issues to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for low back problems; right leg problems; left leg problems; and right ankle problems, since November 2016. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptomatology regarding his claimed low back disability; right leg disability; left leg disability; and right ankle disability. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an appropriate VA examination to determine the onset and/or etiology of his claimed low back disability; right leg disability; left leg disability; and right ankle disability. The claims file must be reviewed by the examiner. The examiner must diagnose all current low back disabilities; right leg disabilities; left leg disabilities; and right ankle disabilities. Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner must provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not that any currently diagnosed low back disabilities; right leg disabilities; left leg disabilities; and right ankle disabilities, are related to and/or had their onset during his period of service. The examiner must specifically acknowledge and discuss the Veteran’s treatment for right ankle problems and left leg problems during service, and the reports by the Veteran of low back problems; right leg problems; left leg problems; and right ankle problems, during and since his period of service. 4. Issue the Veteran a statement of the case as to the issues of entitlement to service connection for sleep apnea; hypertensive heart disease; a right shoulder disability; and for a left shoulder disability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. D. Regan, Counsel