Citation Nr: 21063505 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-15 761 DATE: October 14, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for a mid to low back disability is remanded. Entitlement to service connection for a right knee injury is remanded. Entitlement to service connection for an upper back and neck disability is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had right ear hearing loss at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the Board. A transcript of the hearing has been associated with the Veteran's VA claims file. In a July 2020 decision, the Board denied the Veteran's claims for service connection for a mid to low back disability and a right knee injury and remanded the Veteran's claims for service connection for an upper back and neck disability and right ear hearing loss. The Veteran appealed the portion of the Board's decision that denied service connection for a mid to low back disability and a right knee injury to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in May 2021, the Veteran's representative and a representative of VA's Office of General Counsel filed a Joint Motion for Remand. In the Joint Motion, the parties indicated that a remand was necessary "because the Board erred by failing to ensure compliance with the duty to assist in obtaining medical records and by relying on inadequate January 2017 VA back conditions examination." See May 2021 Joint Motion at page 2. In a May 2021 Order, the Court vacated the Board's July 2020 decision and remanded the matter for readjudication in light of the Joint Motion. The Veterans Law Judge who conducted the August 2019 hearing has since retired. Correspondence was sent to the Veteran in September 2021 inquiring whether he desired a new Board hearing in conjunction with this appeal. The letter informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing. As the Veteran did not respond, the Board will proceed accordingly. 1. Entitlement to service connection for right ear hearing loss Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Generally, the evidence 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 in or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted for listed chronic diseases if they are shown to have manifested to a compensable degree within one year after the Veteran was separated from service or through a showing of "continuity of symptomatology" since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Analysis The Veteran contends that his right ear hearing loss is related to active duty service. Specifically, he contends he was exposed to live fire training exercises, helicopters, tanks, and cannons during active duty service. See August 2019 Board hearing transcript, Pg. 4. The Veteran underwent a VA audiological examination in July 2015. He reported a gradual decrease in hearing over the past several years. The results of the audiometric testing revealed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 20 20 LEFT 15 15 25 30 40 Maryland CNC speech recognition scores were 96 percent for the right ear and 96 percent for the left ear. The examination did not reveal any exceptional patterns of hearing impairment as defined in 38 C.F.R. § 4.86, or that the speech recognition discrimination test was not appropriate for consideration. During his August 2019 Board hearing, the Veteran testified that his right ear hearing worsened since his January 2017 VA audiological examination. See August 2019 Board hearing transcript, Pg. 5. In July 2020, the Board remanded the Veteran's claim because the Veteran had been granted service connection for his left ear hearing loss and because he asserted hearing in his right ear had worsened. The Board found the Veteran should be afforded a new VA examination to determine whether he currently meets the requirements to establish right ear hearing loss disability for VA purposes, and, if so, whether the disability is related to service. On November 2020 VA audiological examination, the Veteran reported muffling of speech and other sounds, difficulty understanding words, especially against background noise or in a crowd, sometimes asking others to speak more slowly, clearly, and loudly, and avoidance of some social settings. Audiometric testing revealed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 10 15 LEFT 10 10 15 20 30 The Maryland CNC speech discrimination test revealed speech recognition of 100 percent in the right ear and 100 percent in the left ear. Based on the foregoing, service connection for right ear hearing loss disability is not warranted because the evidence of record is against a finding that the Veteran has a current disability in accordance with VA regulations. As noted above, a hearing loss disability is defined by regulation, i.e., 38 C.F.R. § 3.385. There are no audiometry findings of record for the right ear demonstrating that the Veteran's auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or that his auditory threshold for at least three of the frequencies is 26 decibels or greater. CNC speech recognition was not less than 96 percent. Therefore, the first element of service connection has not been met. Accordingly, as the record does not demonstrate that the Veteran has right ear hearing loss within VA standards, there is no valid claim for entitlement to service connection for right ear hearing loss. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board recognizes that the Veteran is competent to report his hearing difficulty and that hearing impairment was demonstrated during the examinations. However, his statements are not competent to establish right ear hearing loss, which by regulation must be shown by official audiometry. Here, audiometric testing has not revealed the presence of hearing loss as defined by VA regulations. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for right ear hearing loss, and the benefit-of-the-doubt rule is not for application. REASONS FOR REMAND 1. Entitlement to service connection for a mid to low back disability is remanded. The Veteran contends that his mid to low back disability is related to carrying heavy packs and walking up and down, heavy, uneven terrain during active duty service. See August 2019 Board hearing transcript, pg. 9. In the May 2020 joint remand, the parties agreed that the Board erred by relying on an inadequate January 2017 VA back conditions examination. The parties noted that the examiner based her negative nexus opinion only on information contained in STRs, specifically those from 1987 reporting mid-back pain, spasms, and strains, and the lack of notations in other medical records. The parties noted the examiner failed to provide a reasoned medical opinion because she did not address the Veteran's report of back pain preceding 1987. The Board finds that an addendum medical opinion is required prior to adjudication of this issue. 2. Entitlement to service connection for a right knee injury is remanded. The Veteran contends that his right knee injury is related to active duty service. Specifically, he contends, his right knee injury occurred from hiking up and down hills periodically with long marches, running, and sometimes falling. See August 2019 Board hearing transcript, pg. 6. During his hearing, the Veteran testified that he did not complain about his knee at separation because he just wanted to get discharged. Id. at pg. 7. He testified that he had a knee injury post service while working for border patrol and when he went to see a private physician in July 1989, the physician wrote in his report that his injury that day as a border patrol agent was not due to border patrol but was a residual from the Marine Corps. Id at pg. 8. In the May 2020 joint remand, the parties agreed that the Board erred by failing to ensure compliance with the duty to assist in obtaining medical records. Specifically, the parties noted the Veteran submitted a March 1994 workers compensation denial letter that referenced a July 1989 private physician's report noting a history of chronic knee pain that was not job related. The parties noted that because the Veteran had been discharged from active duty less than a year before the July 1989 private physician's report, the Board should consider whether the reports therein of chronic knee pain could relate to his active duty service. The parties noted that the Veteran also referenced the private physician's report during his Board hearing. Furthermore, the parties noted that the workers compensation denial letter also contained referenced to other medical evidence the Veteran submitted to the Department of Labor from 1990 to 1993. The Board finds that a remand is necessary to attempt to obtain medical records from the July 1989 private physician and any other outstanding medical records, to include any records submitted to the Department of Labor from 1990 to 1993. See 38 C.F.R. § 3.159. 3. Entitlement to service connection for an upper back and neck disability is remanded. The Veteran contends that his upper back and neck disability is related to carrying heavy packs during active duty service. See August 2019 Board hearing transcript, pg. 13. In July 2020, the Board remanded the Veteran's claim for a VA examination and medical opinion addressing the nature and etiology of the Veteran's upper back and neck condition because of the Veteran's assertions of an upper back and neck disability related to service and service treatment records indicating the Veteran was assessed with muscle strain of the subscapular trapezius and right rhomboid muscle strain during service and the medical evidence reflecting a current diagnosis of neck strain. The Veteran was afforded a VA examination October 2020. The VA examiner noted diagnoses of spinal stenosis; intervertebral disc syndrome (IVDS); radiculopathy due to IVDS of the left lower radicular group of nerves, and degenerative disc disease (DDD) of the cervical spine. The Veteran reported symptoms began during basic training which required high volumes of vigorous exercise. He reported slipped discs as a result of wear and tear from carrying an approximately 40-pound pack for three years up and down hills. He reported that this exacerbated DDD, sciatic and osteoarthritis and that loss of disc height caused sharp, shooting pain, numbness, tingling, muscle spasms and weakness. The VA examiner opined, based on medical records reviewed, it is less likely than not that the Veteran's current neck condition was in incurred in service as related to or associated with his right subscapular and trapezius spasm in October 1987 and chronic rhomboid muscle strain in November 1987 because there are no medical records to show that he has any neck pain, condition, or injury in the service or thereafter. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Nicholson, 21 Vet. App. 23 (2007). The matters are REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's mid to low back disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. In so opining, the examiner must specifically consider and discuss the Veteran's reports of back pain preceding 1987. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records, including but not limited to the July 1989 private physician's report and any records submitted to the Department of Labor from 1990 to 1993. After securing the proper authorizations where necessary, obtain all records of treatment or examination from all sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Thereafter, arrange for an appropriate health care provider to review the Veteran's claim file and provide an opinion as to: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current right knee injury had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. (b.) In so opining, the examiner must specifically consider and address the Veteran's testimony of right knee injury in service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Thereafter, arrange for an appropriate health care provider to review the Veteran's claim file and provide an opinion as to: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current upper back and neck disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. (b.) In so opining, the examiner must specifically consider and discuss the Veteran's testimony of an upper back and neck disability in service. (c.) The health care provider is advised that the sole basis for a negative opinion may not be the fact that the Veteran's service treatment records are negative for any complaints, treatment, or diagnoses of an upper back and neck disability. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.