Citation Nr: 21001368 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-58 814 DATE: January 7, 2021 REMANDED The claim for service connection for bilateral carpal tunnel syndrome is remanded. The claim for service connection for a headache disability is remanded. The claim for service connection for hypertension is remanded. The claim for service connection for bilateral hearing loss is remanded. The claim for service connection for tinnitus is remanded. The claim for service connection for vertigo or other balance disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1976 to February 1977 and from January 1980 to September 1981. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran in a Form VA 21-526EZ, Fully Developed Claim, submitted in May 2020, informed that he was in the Delaware Army National Guard from October 1987 to March 1994. Upon remand, records of Delaware Army National Guard service, including any associated treatment and examination records and personnel records providing dates of ACDUTRA, should be obtained in furtherance of the appealed claims. In hearing testimony, discussed below, he also reported having National Guard service between his periods of active duty service. Hence National Guard records should also be sought for the interval from February 1977 to January 1980. Additional VA treatment and examination records were added to the claims file subsequent to the most recent statement of the case (SOC) in November 2016 addressing claims for service connection for bilateral hearing loss, tinnitus, hypertension, vertigo, migraine headaches, and carpal tunnel syndrome, and subsequent to the supplemental statement of the case (SSOC) in July 2019 addressing the claims for migraine headaches and carpal tunnel syndrome. The Veteran also underwent a hands examination in October 2020 in support of a claim for increased rating for left hand arthritis, which examination is pertinent to the claim for service connection for carpal tunnel syndrome. The Veteran has not waived review by the agency of original jurisdiction (AOJ) of this new evidence prior to Board adjudication. The claims are remanded in part for RO review of the additional evidence and issuance of a SSOC. 38 C.F.R. §§ 19.31, 20.1304(c). Additionally, the record reflects that the Veteran was sentenced for 15 years in prison, and was imprisoned from 1998 until 2011, with probation subsequently until July 2017. Records from this period of incarceration may include treatment for claimed disabilities. Hence, the AOJ should attempt to obtain any medical records associated with his incarceration. At a May 2019 VA treatment the Veteran reported that his first mental health treatment was in prison. Because mental health treatment notes may inform of other conditions at the time, mental health treatment notes from his period of incarceration should also be sought. 1. Claim for service connection for bilateral carpal tunnel syndrome At his June 2020 hearing before the undersigned, the Veteran testified to undergoing nerve conduction tests sometime between 2016 and 2019, in either Nashville or Murphysboro. He added that Dr. Jones said that the carpal tunnel was either due to service or related to his service-connected left wrist fracture, or due to compensating for the left wrist by using the other hand. He testified to currently receiving treatment for his carpal tunnel syndrome at the VA clinic in Hopkinsville as well as at the VA hospital in Delaware. A VA nerves examination in April 2019 was negative for findings of carpal tunnel syndrome, and an April 2019 examiner opinion that the Veteran did not have carpal tunnel syndrome secondary to his service-connected left wrist arthritis because there was no evidence of carpal tunnel syndrome. However, subsequent VA treatment records suggest the presence of carpal tunnel syndrome. A June 2019 VA treatment record informs that the Veteran has numbness and tingling in his upper extremities for which he took gabapentin and used wrist braces with some relief. A VA examination by a neurologist is warranted to address whether the Veteran has carpal tunnel syndrome and if so whether the condition on each side is related to service or service-connected disability, including psychiatric disability or status post left wrist fracture. The examiner should note that the Veteran has been diagnosed with arthritis of both hands, and that these conditions are not service connected. 2. Claim for service connection for a headache disability In his November 2016 VA Form 9, the Veteran requested that his claims for depression and migraine should also be considered as secondary to his service-connected arthritis of the lumbar spine and service-connected status post left wrist navicular fracture to include osteoarthritis, explaining that he believed his back and left wrist played a role in his depression, and those conditions together with his depression caused his migraines. In a February 2019 rating decision, the RO granted service connection for major depressive disorder. In June 2018, a VA examiner conducted an interview-base examination and did not diagnose a headache condition. The examiner opined that because the Veteran did not have a diagnosis of migraines he did not have migraines which were caused or aggravated by service-connected disabilities. At his June 2020 hearing before the undersigned, the Veteran testified to having a headache off and on since his fall hitting his head in service. He added that he also had difficulty sleeping, getting approximately four hours of sleep. He denied being diagnosed with migraine. The Veteran reported getting headaches from being outside in sunlight, and that he had to take his medication and lie down to relieve the headaches. He added that he believed a mental health doctor on one occasion mentioned that his depression and anxiety aggravated his headaches. At the hearing, the undersigned agreed to obtain another examination based on current treatment for headaches and to address the question of whether the Veteran had a headache disability which was caused or aggravated by his service-connected psychiatric disability. At a September 2016 VA eye examination, the Veteran reported that his eyeglasses had been taken from him while he was incarcerated eight months ago, and that he had headaches from using older prescription eyeglasses. The Veteran was also noted to have cataracts bilaterally and possible glaucoma. Upon remand examination, the examiner should also consider the possibility of headaches related to non-service-connected eye disabilities and/or failure to use appropriate corrective lenses. 3. Claim for service connection for hypertension The Veteran testified at his June 2020 hearing that a mental health clinician informed that he had to keep his anxiety under control to keep his blood pressure down. He added that there were also difficulties controlling his blood pressure between his various prescribed medications. At the hearing, the representative suggested that the Veteran’s hypertension may be caused or aggravated by his newly service-connected psychiatric disability. Remand is warranted for an examiner to address a possible causal link between service-connected disability and hypertension. 4. – 5. Claims for service connection for bilateral hearing loss and tinnitus At his June 2020 hearing before the undersigned, the Veteran testified to noticing hearing problems since service and being exposed in service to noise from generators in field activities and from rockets and bombs. He also testified that a Dr. J, his last doctor at the Hopkinsville VA clinic, told him that he had tinnitus which was due to service. The Veteran testified that the ringing in his ears was constant, but he added that initially the ringing would come and go. He testified to first noticing his hearing loss when he was in the National Guard in Delaware in 1978, but he reported receiving treatment for his hearing in approximately 2011 or 2012 when he was in a homeless shelter in Milford, Delaware. He testified to then receiving care at the VA hospital in Wilmington. The Veteran was afforded a VA examination in September 2015 addressing hearing loss and tinnitus. However, the examination results were noted to be invalid because the Veteran was reportedly exposed to excessive noise the same day as the examination. At the examination, the Veteran reported that following service he worked as a janitor in a plant and was then exposed to a lot of noise, but that he then wore hearing protection. The examiner opined that it was likely that the Veteran’s tinnitus was related to his hearing loss, but that his hearing loss was unlikely to be related to service, explaining that the hearing loss did not develop until after a significant post-service work history of “work around dangerous high-level noise.” The examiner also noted that sensorineural hearing loss was not shown upon service separation. Because the negative opinions provided by the September 2015 examiner were based in part on findings at the examination which the examiner noted were invalid, the opinions are potentially based on an inaccurate factual premise. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (per curiam). Additionally, the examiner relied on the absence of findings of hearing loss/tinnitus in service. Hence, a new examination and opinions are warranted to address claimed hearing loss and tinnitus. 6. Claim for service connection for vertigo or other balance disorder At his June 2020 hearing before the undersigned, the Veteran testified that he did not know how his claimed vertigo or loss of balance was related to service, but he then speculated that it might be related to his psychiatric disability or to his hearing loss. He did relate that he suffered a blast to his face when in the National Guard which caused him to fall down and hit his head. He added that his face was bandaged afterwards, and they told him afterwards that there was no damage. However, he reported that he experienced vertigo ever since service. He added that while in service he also fell from a pole and hit his head. He reported receiving treatment with medication for vertigo at the VA hospital when he was homeless in 2011 or 2012, but that he had not received treatment since that time. The Veteran is competent to address injuries he suffered in service. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). He has yet to be afforded an examination addressing the likelihood that current vertigo or loss of balance is related to a fall in service. Additionally, as the hearing loss and tinnitus claims are the subject of remand, the potentially intertwined vertigo claim should also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The examiner upon remand should also address the likelihood of hearing loss or tinnitus causing or aggravating his claimed vertigo. The matters are REMANDED for the following actions: 1. Afford the Veteran and his authorized representative the opportunity to submit additional evidence or argument in furtherance of the remanded claims. 2. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran’s authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained the Veteran should be appropriately notified. 3. Obtain service treatment records and service personnel records, including dates of active duty for training (ACDUTRA), from his reported Delaware Army National Guard service from October 1987 to March 1994, and from any National Guard service from February 1977 to January 1980. Any National Guard personnel or medical treatment records pertaining to the Veteran suffering a shot blast to the face and any follow up care should be sought, and it should be ascertained from official sources whether this occurred during ACDUTRA or inactive duty for training (INACTDURA). 4. Thereafter, due to the Covid-19 pandemic, if records-based examinations (including examinations supplemented by telephonic examination conducted with the Veteran) can satisfactorily address all questions posed in the remand instructions, then these should be accomplished. To the extent these cannot be accomplished, then in-person examinations should be conducted to the extent feasible. 5. Obtain a new examination by a neurologist to address whether the Veteran has carpal tunnel syndrome in each wrist related to service or service-connected disability. The examiner should note that while a VA examiner in April 2019 found that the Veteran did not have carpal tunnel syndrome, subsequent VA treatment reflect findings suggesting the presence of carpal tunnel syndrome and the Veteran testified at his June 2020 hearing that he underwent tests sometime between 2016 and 2019 in either Nashville or Murphysboro addressing carpal tunnel syndrome. The examiner should note that the Veteran is service-connected for status post left wrist fracture with arthritis, but that he has also been diagnosed with arthritis of both hands, and the arthritis of both hands in his hands is not service connected. The claims file must be reviewed inclusive of past examination reports, treatment records, and the Veteran’s statements and testimony. The examiner must also document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. Separately for each wrist, the examiner should address whether carpal tunnel syndrome has been present at any time during the claim period, and if present, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the condition developed in service or is otherwise causally related to service, Also, the examiner should also opine, again separately for each wrist, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected status-post left wrist fracture with arthritis and/or major depressive disorder caused or aggravated (worsened) the condition. The examiner must provide separate opinions and rationales for causation and aggravation. Secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner should provide a complete explanation for each opinion expressed. 6. Obtain a new examination by an appropriate clinician to address whether the Veteran has a headache disability related to service or service-connected disability. The examiner should note that while a VA examiner in June 2018 found that the Veteran did not have migraines, the Veteran provided testimony at a June 2020 hearing to the effect that he had a headache disability. The claims file must be reviewed inclusive of past examination reports, treatment records, and the Veteran’s statements and testimony. The examiner must also document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should also note the Veteran’s self-report at a September 2016 VA eye examination that he suffered headaches related to use of eyeglasses with an older (incorrect) prescription. Cataracts and glaucoma were also then noted. Hence, the examiner should consider the possibility of headaches being related to non-service-connected eye disabilities and/or failure to use appropriate corrective lenses. The examiner should address whether the Veteran has had a headache disability – as contrasted with common headaches not rising to the level of disability – at any time during the claim period. For any such headache disability, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the condition developed in service or is otherwise causally related to service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected major depressive disorder, status post navicular fracture of the left wrist with arthritis, and/or back disability caused or aggravated (worsened) the headache disability. The examiner must provide separate opinions and rationales for causation and aggravation. Secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner should provide a complete explanation for each opinion expressed. 7. Obtain a new examination by an appropriate clinician to address whether the Veteran has hypertension related to service-connected major depressive disorder. The claims file must be reviewed inclusive of past examination reports, treatment records, and the Veteran’s statements and testimony. The examiner must also document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected major depressive disorder caused or aggravated (worsened) his hypertension. The examiner must provide separate opinions and rationales for causation and aggravation. Secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner should provide a complete explanation for each opinion expressed. 8. Obtain a new VA hearing loss examination conducted at an appropriate time interval following any excessive noise exposure. The examination scheduler is to be cautioned that the last examination in September 2015 was considered invalid by the examiner due to too recent exposure to excessive noise, and for this reason a new examination is required. The claims file must be reviewed inclusive of past examination reports, treatment records, and the Veteran’s statements and testimony. The examiner must also document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. For any hearing loss and tinnitus present during the claim period, the examiner should separately opine whether it is at least as likely as not (50 percent or greater probability) that the condition developed in service or is otherwise causally related to service. Also for any hearing loss and tinnitus present during the claim period, the examiner should separately opine whether it is at least as likely as not (50 percent or greater probability) that the condition was present to a disabling degree within the first post-service year. For these opinions, the Veteran’s self-report of noise exposures and the findings upon prior VA examination in September 2015 should be considered, including with regard to service and post-service noise exposures and onset of symptoms or findings of hearing loss and tinnitus. The examiner should be reminded that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should provide a complete explanation for each opinion expressed. 9. Obtain an examination by an appropriate clinician to address whether the Veteran has vertigo or another balance disorder related to service or related to claimed hearing loss or tinnitus. The claims file must be reviewed inclusive of past examination reports, treatment records, and the Veteran’s statements and testimony. The examiner must also document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. For any vertigo or other balance disorder present during the claim period, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the condition developed in service or is otherwise causally related to service. The examiner should specifically consider whether the claimed vertigo or other balance disorder originated from a fall from a pole in service or from a blast to the face in when the Veteran was in the Army National Guard. Also for any vertigo or other balance disorder present during the claim period, the examiner should separately opine whether it is at least as likely as not (50 percent or greater probability) that the condition was caused or aggravated (worsened) by a hearing loss disability or by tinnitus. The examiner must provide separate opinions and rationales for causation and aggravation. Secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner should provide a complete explanation for each opinion expressed. 10. Thereafter, readjudicate the appealed claims. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.