Citation Nr: 20052017 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 12-17 697 DATE: August 5, 2020 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for right hand and finger disability is remanded. Entitlement to service connection for left hand and finger disability is remanded. Entitlement to service connection for right wrist disability is remanded. Entitlement to service connection for left wrist disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from June 1970 to April 1977, and from April 1979 to December 1991. The issues that presently are before the Board of Veterans’ Appeals (Board) on appeal arose from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2011 rating decision, the RO denied service connection for bilateral ear condition, bilateral hand and finger condition, right wrist condition, and left wrist condition, and denied a TDIU. In an August 2016 rating decision, the RO granted service connection for left ear hearing loss. In April 2018 the Board denied service connection for right and left ear disabilities other than tinnitus and hearing loss. The Board remanded to the RO, for additional action, the issue of service connection for right ear hearing loss, the issues of service connection for right hand and finger disability, left hand and finger disability, right wrist disability, and left wrist disability, and the issue of a TDIU. A claim for service connection for a neck disability previously was on appeal to the Board. In an April 2020 rating decision, the RO granted service connection for degenerative disc disease at C5-C6 and C6-C7, claimed as a neck condition. That decision resolved the service connection claim. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2019). Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Service connection for right ear hearing loss In April 2018, the Board remanded this issue to the RO to develop additional evidence, including medical opinion. The actions that have been taken on the remand directives have not constituted substantial compliance with those directives. The Board is remanding the issue again for action that provides substantial compliance. VA has established service connection for the Veteran’s left ear hearing loss. The Veteran contends that exposure to noise in service caused hearing loss in both ears, so in his right ear as well. For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2019). The Court has held that 38 C.F.R. § 3.385 does not preclude service connection for current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet the regulatory requirements for establishing a “disability” at the time of a veteran’s separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. The Veteran had a VA audiology examination in July 2016. The examiner expressed the opinion that it is less likely than not that noise exposure or other events in the Veteran’s service caused right ear hearing loss. In forming that opinion, the examiner only relied on apparent normal right ear hearing in the Veteran’s February 1977 separation examination. The examiner did not consider the Veteran’s second, 1979 to 1991, period of service. The examiner did not consider the fact that the February 1977 separation examination report showed some reduction in right ear hearing acuity compared to the June 1970 entrance examination report. In April 2018 the Board remanded the right ear hearing loss issue for an adequate opinion regarding the etiology of the Veteran’s right ear hearing loss. On VA audiology examination in September 2019, the examiner expressed the opinion that it is less likely than not that the Veteran’s right ear hearing loss was caused by or a result of events in military service. In explanation, the examiner concluded that the Veteran’s right ear hearing was normal on the February 1977 examination report. The examiner did not address results of testing of the Veteran’s right ear hearing during his second service period. The Board finds that the 2019 opinion did not provide substantial compliance with the directives in the 2018 Board remand. When there is not substantial compliance with Board remand directives, the Board must remand the matter again. See Stegall v. West, 11 Vet. App. 268 (1998). The Board is remanding the right ear hearing loss issue for another file review by a VA clinician, with consideration of results of hearing tests during both of the Veteran’s service periods, and opinion as to the likely etiology of his right ear hearing loss. 2. Service connection for right hand and finger disability The Board is remanding this issue for VA medical opinion. The Veteran contends that his right hand and finger disability is secondary to his neck disability. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2019). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). In an April 2020 rating decision, the RO granted service connection for degenerative disc disease at C5-C6 and C6-C7, claimed as neck condition. Now that service connection is established for a neck disability, a relationship between the neck disability and an upper extremity disability may be a basis for service connection for the upper extremity disability. The Board is remanding the issue for a VA clinician to review the file and provide opinion as to the likelihood that the neck disability proximately causes or aggravates right hand and finger disability.   3. Service connection for left hand and finger disability The Board is remanding this issue for VA medical opinion. The Veteran contends that his left hand and finger disability is secondary to his neck disability. Now that service connection is established for a neck disability, a relationship between the neck disability and an upper extremity disability may be a basis for service connection for the upper extremity disability. In July 2010, the Veteran sought service connection for a disorder manifested by intermittent loss of feeling in his fingertips and thumbs. In an August 2016 rating decision, the RO granted service connection for left thumb strain, found to be related to left thumb injury in service in 1972. The pending appeal for service connection for left hand and finger disability encompasses any current disability in the left hand and other four fingers, and any disability in the thumb other than the pain, weakness, and limitation of motion considered in evaluating the service-connected left thumb strain. The Board is remanding the issue of service connection for left hand and finger disability for a VA clinician to review the file and provide opinion as to the likelihood that the neck disability proximately causes or aggravates current disability in those areas. 4. Service connection for right wrist disability The Board is remanding this issue for VA medical opinion. The Veteran contends that his right wrist disability is secondary to his neck disability. Now that service connection is established for a neck disability, a relationship between the neck disability and an upper extremity disability may be a basis for service connection for the upper extremity disability. The Board is remanding the issue for a VA clinician to review the file and provide opinion as to the likelihood that the neck disability proximately causes or aggravates right wrist disability. 5. Service connection for left wrist disability The Board is remanding this issue for VA medical opinion. The Veteran contends that his left wrist disability is secondary to his neck disability. Now that service connection is established for a neck disability, a relationship between the neck disability and an upper extremity disability may be a basis for service connection for the upper extremity disability. The Board is remanding the issue for a VA clinician to review the file and provide opinion as to the likelihood that the neck disability proximately causes or aggravates left wrist disability. 6. TDIU The Board is remanding this issue to be addressed after completion of remand actions on intertwined claims. The Veteran contends that his service-connected disabilities make him unable to secure or follow a substantially gainful occupation. Determinations on the appealed and remanded claims for service connection for several disorders are potentially relevant to his TDIU claim. The Board is remanding the TDIU claim for the RO to review after developing and reviewing the other remanded claims. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate VA clinician for review, to address a claim for service connection for right ear hearing loss. Inform the reviewer that service connection for the Veteran’s left ear hearing loss has been established. Ask the reviewer to review results of testing of the Veteran’s hearing during both his active military service periods, from 1970 to 1977 and from 1979 to 1991. Inform the reviewer that applicable caselaw states that where hearing was within normal audiometric testing limits at separation from service, service connection for current hearing loss is not precluded, but rather may be established if there is evidence that the current disability is causally related to service. Inform the reviewer that such evidence can include shifts in auditory thresholds during a service period. Ask the reviewer to provide an opinion as to whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran’s right ear hearing loss was incurred or aggravated during either or both of his active service periods. Ask the reviewer to provide clear and thorough explanation for each conclusion and opinion. 2. Provide the Veteran’s claims file to an appropriate VA clinician for review, to address a claim for service connection for disabilities of the right and left hands, fingers, and wrists, including as related to service-connected cervical spine degenerative disc disease. Ask the reviewer to identify from the records disorders affecting each of the Veteran’s hands, fingers, and wrists, including disorders manifested by intermittent loss of sensation. Ask the reviewer, for each such disorder, to provide an opinion as to whether it is at least as likely as not (at least a 50 percent likelihood) that the disorder is (a) proximately due to or the result of, or (b) aggravated by, the Veteran’s neck disability, including cervical spine degenerative disc disease. Ask the reviewer to provide clear and thorough explanation for each conclusion and opinion. 3. Then review the expanded claims file and review the claims for service connection for right ear hearing loss, right hand and finger disability, left hand and finger disability, right wrist disability, and left wrist disability. (Continued on the next page)   4. Then review the expanded claims file and review the claim for a total disability rating based on individual unemployability. 5. Then review the expanded claims file. If any of the remanded claims remains denied, issue a supplemental statement of the case and allow the Veteran and his representative to respond. Then return the case to the Board for appellate review, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. J. Kunz, 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.