Citation Nr: 20004101 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 14-04 318 DATE: January 16, 2020 ORDER Entitlement to service connection for hearing loss of the right ear is denied. REMANDED Entitlement to service connection for a gastrointestinal disability, claimed as melena or bowel movements, is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected tinnitus and/or as a result of service in the Persian Gulf, is remanded. FINDING OF FACT There is no evidence of record which establishes that the Veteran has a current diagnosis of hearing loss of the right ear in accordance to VA standards. CONCLUSION OF LAW The criteria for service connection for hearing loss of the right ear have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from December 1991 to December 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2010 (hearing loss, headaches) and November 2012 (gastrointestinal disability) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified at a hearing. The transcript of the hearing is of record. By way of background, in December 2017, the Board remanded the issues on appeal. The matter has returned to the Board for appellate consideration. The Board finds that additional development is needed before the Veteran’s claims for entitlement to service connection for gastrointestinal disability and headaches can be decided, as the Board finds that VA did not substantially comply with the December 2017 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Generally, to establish service connection a veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include bilateral hearing loss, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Sensorineural hearing loss is considered an organic disease of the nervous system, which is listed as a “chronic disease” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). As such, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply to the claim for hearing loss. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater; or at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for hearing loss of the right ear is denied. The Veteran contends that his hearing loss of the right ear manifested as a result of his service. Specifically, the Veteran stated that he was a crew chief/aircraft mechanic in service and was exposed to loud jet engine noise with little to no hearing protection. See February 2010 VA 21-4138 Statement in Support of Claim. Despite the Veteran’s contentions, based on a review of the record, the Board finds that the Veteran does not meet the standards for service connection for hearing loss of the right ear as the preponderance of the evidence supports a finding that there is no current disability that meets the criteria of 38 C.F.R. § 3.385. Regarding the first element of direct service connection (a current disability) for hearing loss, the medical evidence does not reflect a diagnosis of hearing loss of the right ear in accordance to VA standards. The Veteran was afforded VA examinations in June 2010 and January 2019. In the June 2010 examination, the Veteran did not exhibit 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz; 26 decibels or greater in at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz; or speech recognition score of less than 94 percent of the right ear. Specifically, the Veteran exhibited 15 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 10 decibels at 3000 Hertz, and 15 decibels at 4000 Hertz with a speech discrimination score of 96 percent of the right ear. In the August 2010 addendum opinion, the examiner noted that the most recent hearing test conducted in June 2010 showed normal hearing. In fact, the Veteran’s otologic examination was unremarkable except for some cerumen impaction. In the January 2019 examination, the Veteran did not exhibit 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz; 26 decibels or greater in at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz; or speech recognition score of less than 94 percent of the right ear. Specifically, the Veteran exhibited 15 decibels at 500 Hertz, 20 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, and 25 decibels at 4000 Hertz with a speech discrimination score of 98 percent of the right ear. Based on the foregoing, the Board finds that the Veteran does not have hearing loss of the right ear in accordance to VA standards. Accordingly, the Board finds that the first element has not been met. In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, however, as noted above, the evidence does not establish that the Veteran currently experiences a diagnosable hearing loss of the right ear in accordance to VA standards. In the absence of a current disability, the analysis ends, and the claim for service connection for hearing loss of the right ear cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND 2. Entitlement to service connection for a gastrointestinal disability, claimed as melena or bowel movements, is remanded. In the December 2017 Board remand, the Board found that the Veteran should be afforded a new VA examination for his undiagnosed bowel condition; and private treatment records from three facilities (Salem Health, Salem Health West Valley Hospital, and Dallas Family Medicine) should be obtained. Since the December 2017 Board remand, in January 2018 the VA sent a one-time correspondence to the Veteran requesting that he complete and return VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information so that records from Salem Health, Salem Health West Valley Hospital, and Dallas Family Medicine can be obtained. See January 2018 Other. The records do not indicate that the Veteran completed and sent these forms to VA. The Veteran was afforded a VA examination in January 2019 wherein the examiner did not render a diagnosis for the Veteran’s claimed disability. The examiner stated that the medical records show that the Veteran was considered for multiple diagnoses, but no actual diagnosis was ever rendered. The examiner stated that the Veteran’s claimed disability “is uncertain at this point but still seems likely to be able to be determined.” The examiner noted that the Veteran is still in the process of having additional evaluation with a specialist to determine an etiology of the gastrointestinal disability. Therefore, at this point, the examiner is unable to provide an opinion as to whether or not the cause of the Veteran’s claimed disability at least as likely as not had its onset during military service or is otherwise related to such service including as due to Persian Gulf War service without resorting to mere speculation. The examiner concluded by noting that the Veteran had a follow-up appointment with his primary care physician in December 2018 to see if a gastrointestinal (GI) specialist will result in a definitive diagnosis. The examiner added that the Veteran’s symptomatology is less likely as not attributable to irritable bowel syndrome (IBS). The examiner reasoned that the Veteran’s symptoms are not typical symptoms for a diagnosis of IBS. As there is no diagnosis in the record, the Board finds that the January 2019 examiner should have considered the claim under 38 C.F.R. § 3.317 as he served in Operation Desert Shield/Storm from July to October 1993. Additionally, the Board notes that in the September 2019 appellant’s brief, the Veteran requested that his claim for entitlement to service connection for gastrointestinal disability be remanded as the records from the GI specialist, Salem Health, Salem Health West Valley Hospital, and Dallas Family Medicine can provide further information to assist in determining the etiology of the Veteran’s gastrointestinal disability. See September 2019 VA 646 Statement of Accredited Representative in Appealed Case. As the Veteran indicated that he would be cooperative in obtaining records from the GI specialist, Salem Health, Salem Health West Valley Hospital, and Dallas Family Medicine, the Board finds that a remand is warranted. 3. Entitlement to service connection for headaches, to include as secondary to service-connected tinnitus and/or as a result of service in the Persian Gulf, is remanded. In the December 2017 Board remand, the Board found that the Veteran should be afforded a new VA examination to determine whether the Veteran’s headaches are due to his service in the Persian Gulf. Pursuant to the December 2017 Board remand, the Veteran was afforded a new VA examination for his headaches in January 2019. In the examination, the examiner diagnosed the Veteran with tension-type headaches and opined that the Veteran’s tension-type headaches are less likely as not related to the Veteran’s active military service, to include as due to the Veteran’s Gulf War service. The examiner explained that the Veteran had normal neurologic system and denied having frequent or severe headaches in the July 1991 entrance examination and was not seen and diagnosed with a headache syndrome during service. Further, tension-type headaches are a known entity and the weight of the literature including the 2016 Institute of Medicine report regarding Gulf War and Health does not support a relationship between this condition and possible Gulf War exposures. The examiner further noted that the Veteran never specifically charted his tension-type headache to try to identify potential triggers on a day-to-day basis and the Veteran was unable to state if he noticed his tinnitus more on those days. The examiner concluded that she is unable to opine as to whether the Veteran’s tension-type headaches are secondary to or had been permanently aggravated by his service-connected tinnitus without resorting to mere speculation. The examiner stated that if the Veteran is able to chart his tension-type headache and identify specific triggers for those types of headache and this information is provided to the examiner then perhaps an opinion could be rendered. The Board notes that the Veteran was afforded a VA examination in June 2010 wherein the examiner stated that tension headaches are not due to tinnitus and the two problems are unrelated except that it is possible for the tinnitus to sound louder during a severe headache as the noise can be magnified during headache pain. However, if there are abnormal findings on the audiology examination to suggest unusual unilateral hearing loss, then further evaluation for other rare and/or less likely cause of headache would possibly be indicated. The examiner concluded that given the lack of any associated abnormal neurologic symptoms, there is no indication that these headaches are anything other than tension headaches, not due to service. The Board finds that the June 2010 and January 2019 examiner both concluded that more information is beneficial in determining whether the Veteran’s headaches is secondary to the Veteran’s tinnitus. The Board further notes that the June 2010 examiner determined that it is possible for the tinnitus to sound louder during a severe headache as the noise can be magnified during headache pain. However, the examiner did not address whether this magnified tinnitus would aggravate the Veteran’s headaches. Additionally, in the September 2019 appellant’s brief, the Veteran’s representative wrote that “the appellant’s headache log and triggers for headaches have been identified as needed to make a medical opinion.” It is unclear whether the statement indicates that the Veteran has a headache/trigger log. However, as the issue of entitlement to service connection for headaches is remanded the Board finds that the Veteran should submit his headache/trigger log. The matters are REMANDED for the following action: 1. Obtain treatment records from the Veteran’s GI specialist, Salem Health, Salem Health West Valley Hospital, and Dallas Family Medicine. The Veteran is reminded that he should assist by providing the requested information and disclosure authorization form. 2. Obtain the headache/trigger log as identified in the September 2019 brief from the Veteran. 3. After completing #1 and #2, arrange for a VA examination from an appropriately qualified examiner to determine the nature and etiology of any gastrointestinal disability and headaches. The claims file, including a copy of this remand, must be made available to be reviewed by the examiner. A record of the review of the claims file should be documented in the examination report. All indicated diagnostic tests should also be completed. Gastrointestinal disability – Based on the obtained records, the examiner should render a diagnosis (if possible) and opine as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed gastrointestinal disability had its onset in service or is otherwise etiologically related to service. If it is not possible provide a diagnosis, opine whether it is at least as likely as not that these symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness, to include functional gastrointestinal disorders, resulting from his service in Southwest Asia. If so, the examiner should also comment on the severity of symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. Headaches - The examiner must state whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s headaches were (a) caused by or have been (b) aggravated (worsened beyond the natural progress of the disorder) by his service-connected tinnitus. The examiner is reminded that the standard does not require that worsening be permanent worsening. The examiner should consider any headache/trigger log provided by the Veteran. The examiner should address the June 2010 examiner’s assessment that it is possible for tinnitus to sound louder during a severe headache as the noise can be magnified during headache pain. Based on this statement, the examiner should address whether this magnified tinnitus would aggravate (worsened beyond the natural progress of the disorder) the Veteran’s headaches due to magnified noise. If aggravation is found, identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the service-connected disability. A detailed rationale for the opinion must be provided. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.