Citation Nr: 20007776 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-57 360 DATE: January 29, 2020 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected traumatic brain injury (TBI) with headaches is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a disability manifested by nerve damage, bilateral elbows, is remanded. FINDINGS OF FACT 1. The Veteran did not appeal a February 2008 Department of Veterans Affairs (VA) Regional Office (RO) decision that denied service connection for bilateral hearing loss. 2. Evidence received since the February 2008 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The February 2008 RO decision that that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302. 2. The evidence received after the February 2008 RO decision is new and material; the claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1998 to January 1999 and from June 2004 to April 2005. He was awarded the Combat Action Ribbon. The Veteran testified before the undersigned Veterans Law Judge (VLJ) of the VA Board of Veteran’s Appeals (Board) at a January 2020 hearing, seated at the RO. New and Material Evidence Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss. In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (a). The Veteran’s claim for service connection for bilateral hearing loss was denied by a February 2008 RO rating decision on the basis, in part, that the Veteran had bilateral hearing acuity within normal limits. No party filed a Notice of Disagreement (NOD) to the rating decision, nor was there any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b); 20.201. As such, the February 2008 RO rating decision is final. Relevant new evidence added to the record since the prior decision includes statements of the Veteran and his updated VA treatment records, specifically, results of the March 2015 Disability Benefits Questionnaire (DBQ) demonstrating right-ear hearing loss that comports with VA standards to be considered a disability under 38 C.F.R. § 3.385. However, the Veteran did not demonstrate such left-ear hearing loss. The examiner offered an inadequate etiological opinion. During his January 2020 Board hearing, the Veteran asserted that his hearing acuity had worsened since his March 2015 VA examination. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (in determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim with VA’s assistance). The new evidence is material, it could serve as a basis to substantiate the claim and VA’s assistance is required. Such contains evidence of right-ear hearing loss that comports with VA standards to be considered a disability and evidence of worsening left-ear hearing acuity that may indeed comport with such standards, and also includes an inadequate etiological opinion that requires additional medical comment. New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for service-connected TBI with headaches is remanded. The Veteran, during his January 2020 Board hearing, asserted that his TBI with headaches has worsened since the last VA examination. It appears that the Veteran’s disability last evaluated by VA in September 2017, more than three years ago. On remand, the RO should afford the Veteran new VA examination to determine the current severity of his service-connected TBI with headaches. 2. Entitlement to service connection for bilateral hearing loss is remanded. During an October 2006 VA audiological consultation, the Veteran reported a decrease in right-ear hearing acuity since his return home from service in Iraq, and described his in-service noise exposure to include being in combat near roadside bombings and exposure to weapons, M16s, 240Gs, M203s, M9s and various unexpected explosions. He reported that he used hearing protection during service when feasible. He denied civilian and recreational noise exposure. At the time of the Veteran’s original September 2007 claim of entitlement to service connection for bilateral hearing loss, he asserted that such began in 2004, during service. The Veteran’s service treatment records are silent for complaint, treatment, or diagnosis of bilateral hearing loss and no party asserts otherwise. In the February 2008 rating decision that originally denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss, the RO conceded the Veteran’s in-service acoustic trauma. On VA examination in November 2007, the Veteran complained of a change in hearing sensitivity during service, he reported that in January 2005, he was involved in an explosion on his right side that caused temporary bilateral hearing loss and reported that he also had several other instances of temporary hearing loss. In a March 2015 DBQ, the Veteran demonstrated puretone thresholds, in decibels, in the right ear of 25, 30, 30, 40, 40, and in the left ear of 15, 20, 25, 30, 35, each measured at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. There is evidence of an auditory threshold of 40 decibels or greater in at least one of the specified frequencies; and the Veteran’s right-ear hearing loss thus meets the VA requirements for consideration as a disability. 38 C.F.R. § 3.385. However, there is no evidence of such in the left-ear, nor is there evidence of auditory thresholds of 26 decibels or greater in at least three of the specified frequencies or speech recognition less than 94 percent. The Veteran’s left-ear hearing loss thus does not meet the VA requirements for consideration as a disability. Id. However, during the Veteran’s January 2020 Board hearing, he asserted that his hearing acuity had worsened since his March 2015 VA examination, almost five years prior. In his September 2015 NOD, the Veteran asserted that his hearing loss has been gradual and continuous, since service, during which he did not seek treatment due to the operational tempo under which he was working, to the point where hearing aids were needed. The examiner, in March 2015, opined that the Veteran’s bilateral hearing loss was less likely than not related to service. The examiner reasoned that the Veteran’s service treatment records did not show any complaints of hearing loss, abnormal hearing, or a significant threshold shift in hearing acuity, and that medical literature did not support permanent hearing loss related to noise exposure developing long after such exposure. The examiner, however, did not appear to consider the Veteran’s lay statements of in-service decreased bilateral hearing acuity, temporary, after exposure to explosions and the onset of bilateral hearing loss beginning in 2004, and did not have the opportunity to consider the Veteran’s September 2015 lay statements of gradual and continuous decreased hearing acuity since service. On remand, the RO should afford the Veteran a new VA examination to determine if his left-ear hearing loss now meets the VA requirements for consideration as a disability under 38 C.F.R. § 3.385, and to determine the etiology of any right-ear or bilateral hearing loss present, considering his in-service acoustic trauma and in-service head injury and his lay statements as to onset and course.   3. Entitlement to service connection for a disability manifested by nerve damage, bilateral elbows, is remanded. The Veteran, in his September 2015 NOD, asserted that he had nerve damage in his elbows due to service; he reported that he experienced continuous trauma in the elbows during service from contact with the ground, walls, and vehicles. He reported that the damage became evident during deployment, and he complained of pain and numbness at that time but was denied medical attention. In his December 2017 Substantive Appeal, the Veteran asserted that he repeatedly banged his elbows on the ground and on debris during firefights in service, that he sustained an injury on a metal ladder on a truck while jumping out, however, it was frowned upon to seek treatment during firefights, and that his problems persists today. It appears that the Veteran’s service treatment records include a March 2005 post-deployment assessment and a March 2005 self-assessment wherein he complained of swollen, stiff, painful joints, and numbness and tingling in the hands or feet, and complained of the “right elbow” and a March 2005 Report of Medical Assessment wherein he complained of “right elbow.” After separation from service, in October 2006, during VA treatment, the Veteran reported a history of a right elbow injury in Iraq in 2004 or 2005, with non-radiating pain for two years, located in the olecranon region. In May 2007, during VA psychiatric treatment, he reported a 2004 crushing injury of the elbow. During VA treatment in September 2008, he complained of intermittent elbow pain. During VA treatment in May 2009, the Veteran presented with right lateral elbow soreness with mildly decreased range of motion. During a May 2009 VA TBI evaluation, he reported that he had to jump down to the ground several times while in Iraq and now had left elbow pain and occasional right elbow pain radiating to the fingers; he was diagnosed with elbow pain/paresthesia, possible ulnar neuropathy. During VA psychiatric treatment in August 2011, the physician included in the Veteran’s medical problem list sprain of unspecified site of elbow and forearm. In October 2012, he complained of sharp pain that radiated from the elbow to the fingers, with numbness in the fingers. During VA treatment in June 2013, he complained of right arm numbness into the fingers and denied elbow trauma and was diagnosed with questioned right ulnar nerve entrapment; he later underwent energy-dispersive X-ray spectroscopy (EDX) of the right upper extremity, there was no evidence of ulnar neuropathy or carpal tunnel syndrome, however, clinically, he had ulnar nerve subluxation sign when bending the elbow, confirmed by dynamic examination with musculoskeletal (MSK) ultrasound. In August 2014, magnetic resonance imaging (MRI) showed thickening of the ulnar nerve proximal to the elbow and the physician noted that March 2014 electromyography (EMG) was negative for neuropathy; he was diagnosed with right ulnar neuritis at the elbow. In a September 2017 DBQ, the Veteran reported an injury to the right elbow after jumping out of a truck impacting a metal ladder in 2004 and reported that he had other episodes of right elbow trauma in 2004 and 2005. He reported constant right elbow pain since that time, with pain and numbness radiating into the lateral aspect of the right forearm. The examiner noted that the Veteran presented with severe intermittent pain and numbness in the right elbow as symptoms attributable to any peripheral nerve conditions, but also reported that the Veteran did not have a peripheral nerve condition or neuropathy. The examiner reported that EMG was not performed, but that there were other significant diagnostic tests or studies. In a September 2017 opinion, the VA examiner provided a negative etiological opinion and reported that the Veteran had not been formally diagnosed with a right elbow condition or ulnar neuropathy. He reported that although the Veteran’s history is now consistent with cubital tunnel syndrome, his physical examination and EDX in 2013 do not confirm the diagnosis. He reported that the Veteran’s treatment records were not consistent with the Veteran’s history, as the pain was described as non-radiating in October 2006 and intermittent in September 2008. He noted the Veteran’s in-service report of right elbow pain on a post-deployment assessment and separation examination in March 2005 and on an initial VA physical in 2006 and noted that X-ray examination in 2006 and MRI in May 2014 were negative. The precise nature of the Veteran’s bilateral elbow disability, one claimed as manifested by nerve damage. While the Veteran has reported left elbow pain in May 2009, the balance of his elbow complaints appear to be involving the right elbow. The right elbow has been evaluated by VA during treatment on a number of occasions. While the VA examiner, in September 2017, appears to decline to diagnose a right elbow disability, the Veteran has been diagnosed with elbow pain/paresthesia, possible ulnar neuropathy, sprain of unspecified site of elbow and forearm, questioned right ulnar nerve entrapment, ulnar nerve subluxation sign, right ulnar neuritis at the elbow, and possible cubital tunnel syndrome. Significantly, he has demonstrated right lateral elbow soreness with mildly decreased range of motion, a functional limitation that may be a disability. Also, the testing VA treating physicians and the VA examiner have cited do not appear to be of record, the 2006 X-ray examination, the June 2013 EDX and ultrasound, the March 2014 EMG, and the August 2014 MRI. On remand, the RO should obtain and associate with the claims file the Veteran’s complete VA testing results of the right elbow, or the elbows. The RO should also afford the Veteran a new VA examination to determine the precise nature of the Veteran’s right elbow or bilateral elbow disability and the etiology thereof, considering his lay statements of multiple injuries or instances during service wherein he incurred continuous trauma in the elbows during service from contact with the ground, walls, and vehicles, with resultant pain in both elbows. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran’s complete VA testing results of the right elbow, or the elbows, including, but not limited to, the 2006 X-ray examination, the June 2013 EDX and ultrasound, the March 2014 EMG, and the August 2014 MRI, cited by his VA treating physicians and the VA examiner in September 2017. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI with headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hearing loss. All indicated tests and studies must be completed. (a) The examiner must opine as to whether it is at least as likely as not that any current hearing loss is related to an in-service injury, event, or disease, including (i) the Veteran’s conceded acoustic trauma, described as being in combat near roadside bombings and exposure to noise from weapons, M16s, 240Gs, M203s, M9s and various unexpected explosions; and (ii) the Veteran’s head injury/concussion related to explosive blasts. The examiner must specifically consider the Veteran’s lay statements placing the onset of his bilateral hearing loss in 2004, during service, his lay statements of experiencing temporary bilateral hearing loss related to being near explosions, and his lay statements of gradual and continuous bilateral hearing loss since service. (b) For any diagnosed hearing loss, the examiner must opine as to whether such is at least as likely as not: (1) manifested within one year of separation from service in April 2005; or (2) was noted during service with continuity of the same symptomatology since service, specifically considering the Veteran’s lay statements placing the onset of his bilateral hearing loss in 2004, during service, his lay statements of experiencing temporary bilateral hearing loss related to being near explosions, and his lay statements of gradual and continuous bilateral hearing loss since service. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right elbow or bilateral elbow disability, claimed as a disability manifested by nerve damage. All indicated tests and studies must be completed. (a) The examiner must specifically determine the appropriate diagnosis/diagnoses of any right elbow or bilateral elbow disability, considering the Veteran’s diagnosed or noted elbow pain/paresthesia, possible ulnar neuropathy, sprain of unspecified site of elbow and forearm, questioned right ulnar nerve entrapment, ulnar nerve subluxation sign, right ulnar neuritis at the elbow, and possible cubital tunnel syndrome, as well as his pain and mildly decreased range of motion, as such pain, with the reported functional impairment, may indeed constitute a disability that could be etiologically related to service. (Continued on the next page)   (b) For any right elbow disability or bilateral elbow disability, the examiner must opine as to whether such is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reported in-service right elbow injury, described as crushing, from impacting a metal ladder while jumping from a truck, as well as his reported in-service incurred continuous trauma in the elbows during service from contact with the ground, walls, and vehicles, with resultant pain in both elbows. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.