Citation Nr: 18155179 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 15-18 533 DATE: December 3, 2018 ORDER Entitlement to service connection for loss of mobility (balance/gait), to include as secondary to service-connected bilateral hearing loss is denied. REMANDED Entitlement to a compensable rating for service-connected bilateral hearing loss prior to December 2, 2014, and in excess of 20 percent from December 2, 2014 is remanded. FINDING OF FACT The competent and probative evidence of record does not show that the Veteran’s loss of mobility (balance/gait) condition had onset during or was caused by service or was caused or aggravated by his service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for service connection for loss of mobility (balance/gait), to include as secondary to service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1943 to May 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2017. A transcript of the hearing is of record. The Board previously remanded this matter in September 2017. The Board finds there has been substantial compliance with its September 2017 remand directives regarding the claim for loss of mobility (balance/gait), to include as secondary to service-connected bilateral hearing loss; however, as noted below, there has not been substantial compliance with its September 2017 remand directive regarding the increased rating claim for service-connected bilateral hearing loss. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Entitlement to service connection for loss of mobility (balance/gait), to include as secondary to service-connected bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts that his balance issues have been ongoing since service. In the alternative, the Veteran asserts that his balance issues are caused by his service-connected bilateral hearing loss. Service treatment records are silent for complaints, treatment, or diagnosis of a balance/gait issue. In an April 2013 statement, the Veteran stated that he had a hearing problem accompanied by balance and instability. He said that he felt his balance was an equilibrium problem. In a December 2013 treatment record, it was noted that the Veteran presented with 1 and 1/2 years of balance problems. The treating physician suggested that this could be central process involving posterior column/medial lemniscus or peripheral nerve disease, although the Veteran’s examination was diminished only to certain sensory modalities. In a December 2013 addendum, it was noted that the Veteran was seen for dysequilibrium with a Videonystagmography (VNG) suggesting a central process based on eye movement abnormalities. In a March 2014 VA examination, the examiner did not find a diagnosis of an ear or peripheral vestibular condition. The Veteran reported that his symptoms started in 1945 after being exposed to excessive artillery fire in service and had deteriorated since. He reported 2 episodes of vertigo over a 2 year period from 1990 to 1992. He denied having dizziness or vertigo since 1992. The examiner stated that there was no pathology to render a diagnosis and the current examination was normal. The examiner noted that the Veteran was retired and not working and had difficulty understanding others. In an August 2014 VA treatment record, the Veteran was seen for a follow-up of a 2 year history of insidious increasing unsteadiness, balance difficulties, and “disequilibrium” when ambulating, without associated pain, numbness, tingling, dysesthesias, focal weakness, symptomatic orthostatic lightheadedness, tinnitus, or vertigo. It was noted that he had been evaluated for these symptoms previously by the neurology department with suspicion for peripheral neuropathy. It was noted that the Veteran was not convinced he had neuropathy. In a December 2014 VA examination, the examiner did not find a diagnosis of an ear or peripheral vestibular condition. The examiner stated that records and physical examination showed that the Veteran’s vestibular condition was central and associated with oculomotor movements. Therefore, the examiner determined that a diagnosis for a peripheral vestibular condition could not be endorsed. The examiner opined that it was less likely that the Veteran’s vestibular condition was related to his service-connected hearing loss. The examiner reasoned that records indicated the Veteran underwent a VNG in 2013 which revealed a balance condition associated with his eye movement. At the June 2017 Board hearing, the Veteran complained of bouts of dizziness and stated that his balance was not good. He said he had been experiencing the dizziness and balance issues since May 1946. A July 2017 VA treatment record noted the Veteran’s complaints of reported balance problems and falling. In an October 2017 VA opinion, the examiner opined that the Veteran’s imbalance disability was less likely than not related to or had its onset in service. Additionally, the examiner opined that the Veteran’s imbalance disability was less likely than not caused or aggravated by the Veteran’s service-connected bilateral hearing loss. The examiner considered the evidence of record noting the November 2012 diagnosis of imbalance, December 2013 complaints of balance problems 1 and 1/2 years prior, and November 2015 diagnosis of imbalance. The examiner noted that the Veteran’s medical records did not indicate evidence of complaints, treatment, or diagnosis of an imbalance disability during service in order to relate the condition to service. The examiner reviewed and acknowledged the Veteran’s lay statements; however, the statement did not support a causation between the Veteran’s imbalance disability and his service-connected bilateral hearing loss. Therefore, the examiner concluded that it was less likely than not that the Veteran’s condition was caused by service. Additionally, the examiner noted that on the December 2014 ear VA examination, the Veteran reported 2 episodes of vertigo over a 2 year period from 1990 to 1992. He denied having vertigo since 1992. The examiner also noted the audiological evaluation in December 2014 that indicated the Veteran’s bilateral mild to moderate severe hearing loss and audiological consult notes dated March 2015 indicating the Veteran’s hearing aids were reprogrammed to the maximum setting signifying the severity of the Veteran’s bilateral hearing loss. The examiner said that further review of the Veteran’s medical records did not support a nexus between the Veteran’s imbalance disability and his service-connected bilateral hearing loss. Therefore, the examiner stated that it was less likely than not that this condition was caused or aggravated by the Veteran’s service-connected bilateral hearing loss. The Board notes that another VA opinion was provided in September 2018. However, the Board finds this opinion inadequate as it uses the wrong standard of probability. Specifically, the examiner stated that the Veteran’s imbalance condition which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by his service-connected hearing loss. In the rationale, the examiner then stated that it was less likely than not that the imbalance was caused or aggravated by his service-connected hearing loss. The Veteran’s imbalance condition was never found to be pre-existing. Therefore, this opinion is determined to be conflicting, inadequate, and uses the wrong standard of probability. 38 C.F.R. § 4.2. In a follow-up September 2018 VA opinion, the examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the imbalance issue was noted with onset of 2012. Given the significant delay between service and onset, and given age of the Veteran, it was less likely as not related to service. In short, the evidence of record reflects that the Veteran’s loss of mobility (balance/gait) condition began many years after his service and are not related to service. The Board notes the Veteran’s testimony that he started to develop balance issues in May 1946. However, upon examination, several VA examiners did not find that the Veteran’s loss of mobility was related to service or to his service-connected bilateral hearing loss. Additionally, the VA treatment records also made no such finding and instead attributed his loss of mobility to an eye condition or possibly neuropathy. The Veteran is competent to report symptoms of his conditions; however, he is not competent to make any such medical determination that his disorders are related to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the preponderance of the evidence is against the Veteran’s claims for service connection for loss of mobility (balance/gait). The probative evidence of record demonstrates that such is not related to his service or his service-connected bilateral hearing loss. In this regard, the Board places great probative weight on the overall VA examiners’ opinions that the Veteran’s loss of mobility (balance/gait) was less likely than not related to service and/or his service-connected bilateral hearing loss. These opinions had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. No contrary probative medical opinion is of record. Thus, the Board finds that service connection for loss of mobility (balance/gait), to include as secondary to service-connected bilateral hearing loss is not warranted. REASONS FOR REMAND Entitlement to a compensable rating for service-connected bilateral hearing loss prior to December 2, 2014, and in excess of 20 percent from December 2, 2014 is remanded. The Board apologizes for the delay but finds that another remand is necessary to ensure substantial compliance with prior remand orders. See Stegall, 11 Vet. App. 268. The September 2017 Board remand requested that an addendum opinion be obtained which addressed the severity of the Veteran’s bilateral hearing loss. In a September 2018 VA opinion, the examiner stated that the Veteran had an audiogram before December 20, 2014 (in 2013) and one after that date (February 2018) showing no significant changes other than a 10 decibel worsening at 2kHz in the right ear at 1 and 2kHz in the left ear. The fact that there was no significant change indicates that his hearing did not significantly change after the date in question. Initially, the Board notes that the February 2018 VA treatment record the VA examiner refers to actually noted regarding the left ear that there was a 10 decibel decrease at 1 kHz and 2kHz. Additionally, the September 2018 VA examiner did not make a determination on the Veteran’s current word speech discrimination, making it difficult to determine the Veteran’s current severity of his hearing loss disability. Finally, the examiner did not make clear the severity of the Veteran’s bilateral hearing loss prior to December 2, 2014. In a follow-up September 2018 VA opinion, the examiner provided an opinion regarding direct service connection for the Veteran’s bilateral hearing loss. The Board finds this opinion inadequate as bilateral hearing loss is already service-connected. Thus, as a VA opinion does not seem to show an adequate representation of the severity of the Veteran’s hearing loss, a remand is necessary to schedule the Veteran for a VA examination to determine the severity of the Veteran’s bilateral hearing loss prior to December 2, 2014, as well as the current severity of the Veteran’s bilateral hearing loss. The matter is REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the severity of the Veteran’s bilateral hearing loss prior to December 2, 2014, and the current severity of the Veteran’s bilateral hearing loss. The claims file and a copy of this remand should be made available to the examiner for review. All appropriate tests should be conducted. The examiner is asked to not only determine the current severity of the Veteran’s bilateral hearing loss, but also the severity of the Veteran’s bilateral hearing loss prior to December 2, 2014. A clear rationale should be provided for all opinions expressed. The examiner should consider the Veteran’s lay statements. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to provide an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel