Citation Nr: 21066344 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-41 115 DATE: October 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss (BHL) is denied. Entitlement to service connection for bilateral recurrent tinnitus is denied. REMANDED Entitlement to service connection for cervical spine degenerative disc disease (DDD) is remanded. Entitlement to service connection for lumbar spine degenerative disc disease (DDD) is remanded. Entitlement to service connection for right shoulder disorder is remanded. Entitlement to service connection for right hip disorder is remanded. Entitlement to service connection for right ankle disorder is remanded. Entitlement to service connection for left ankle disorder is remanded. Entitlement to service connection for fibromyalgia, to include as a Gulf War illness is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS), to include as a Gulf War illness is remanded. Entitlement to service connection for irritable bowel syndrome (IBS), to include as a Gulf War illness is remanded. Entitlement to service connection for migraine headaches, as secondary to fibromyalgia and CFS is remanded. Entitlement to service connection for a Gulf War illness is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established as the disability is attributable to an intercurrent cause; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's bilateral recurrent tinnitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established as the disability is attributable to an intercurrent cause; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss (BHL) have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for bilateral recurrent tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from July 1985 to November 1989, and from November 1989 to January 1992. This case comes before the Board on appeal of an August 2012 and December 2015 rating decision. This case was previously before the Board in August 2019, where the issues on appeal were remanded for further evidentiary development. Based on a review of the claims file, a Stegall remand is warranted. 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 granted through the application of statutory presumptions for chronic conditions, which includes sensorineural hearing loss and tinnitus. See 38 C.F.R. §§ 3.303 (b), 3.309 (a) (2019); see also 38 U.S.C. §§ 1112, 1137 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303 (b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307 (a)(3) (2019). The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. 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. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, 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 more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). 1. Entitlement to service connection for bilateral hearing loss (BHL) 2. Entitlement to service connection for bilateral recurrent tinnitus Here, the Veteran contends that his hearing loss and bilateral recurrent tinnitus were caused by noise exposure during service. Based on a preponderance of evidence, the Board disagrees. To begin, impaired hearing will be considered a disability when, in pertinent part, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater. 38 C.F.R. § 3.385. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this instance, the Veteran has bilateral hearing loss and reported recurrent tinnitus. See April 2021 VA examination. In the April 2021 VA examination, audiometric testing yielded the following findings: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 60 75 75 LEFT 25 50 70 70 80 Using the Maryland CNC Word list test, the Veteran's speech recognition score was 68 percent bilaterally. The above evidence establishes a current bilateral sensorineural hearing loss disability as defined under 38 C.F.R. § 3.385. Thus, the Veteran has satisfied the first element of service connection. The second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's STRs are silent for complaints or treatment for hearing loss or tinnitus and his audiograms during service revealed normal hearing. See STRs. However, the Veteran's DD 214 and military personnel records reveal that the Veteran's military occupational specialty (MOS) was as a pilot, parachutist, and infantryman, which would have exposed him to military noise. In fact, in the November 1988 audiogram, the audiologist remarked that the Veteran was routinely exposed to hazardous noise. Thus, the Board finds that the Veteran was exposed to hazardous noise during his active military service as part of his regular military duties and assignments. Therefore, to warrant service connection there must be a nexus, or link between the Veteran's in-service noise exposure and his current disability, which is generally proven by medical evidence. In that regard, in the May 2012 examination, the audiologist opined that the Veteran's hearing loss was not incurred during service, as the Veteran had normal hearing sensitivity in both ears at the time of the in-service hearing exam from August 1990. As it pertains to the Veteran's tinnitus, the audiologist opined that the Veteran's recurrent tinnitus was less likely than not caused by or a result of military noise exposure. The audiologist reasoned that there were conflicting reports regarding the date of onset of the Veteran's tinnitus. During the examination, the Veteran reported his tinnitus began during service; however, the Veteran's claim file did not show that he reported tinnitus in service and there were no reports of tinnitus until sixteen years after his military service. Specifically, in private treatment records, the Veteran reported onset of hearing loss, tinnitus, and Meniere's disease after he was injured his head in a fall in 2008. Conversely, in a May 2013 medical opinion, the audiologist, Dr. T.C., opined that the Veteran's hearing loss and tinnitus were caused by his noise exposure during military service. Dr. T.C. reasoned that the Veteran suffered a 10db level shift from entry into service to his last examination in 1990. He added that the Veteran's MOS exposed him to military noise that likely causes hearing loss. Dr. T.C. explained that the medical records related to the Veteran's October 2008 fall, clearly indicated that his hearing loss was pre-existing to the fall. Dr. T.C. added that the Veteran was diagnosed with Meniere's disease post-service, but the Veteran had a history of vertigo, hearing loss, and tinnitus. Then, in the April 2021 VA examination, the audiologist, Dr. C.H., opined that although it is conceded that the Veteran was exposed to noise in the military from aircraft, artillery and weapons fire, it is less likely than not that it is the cause of the Veteran's current hearing loss. She reasoned that there was no evidence that the Veteran had hearing loss while in the military and current hearing loss does not have the configuration of a noise induced hearing loss. She explained that in a medical article "Noise-Induced Hearing Loss Clinical Presentation" by N.N. Mathur stated that noise-induced hearing (NIHL) develops slowly after many years of exposure. Susceptibility varies quite widely, but 10 year or more of exposure is generally required for significant hearing loss to occur. Dr. C.H. continued that the Veteran did not have 10 years of noise exposure in the military due to the length of active-duty service and reported only 1.5 years of exposure to noise as a pilot. Dr. C.H. also discussed criteria shown in noise-induced hearing loss, explaining that the Veteran did not exhibit a noise notch between 3-6k Hz, and that (hearing) loss continued to progress based on audiograms done well after the Veteran's military service. Regarding tinnitus, Dr. C.H. opined that the Veteran's tinnitus was less likely than not due to noise exposure while in service. She reasoned that there was no report of tinnitus while in the military and although the Veteran reported that his tinnitus began in service, medical records showed that the Veteran had a fall in October 2008 where he stated he immediately developed high pitch ringing in the right ear. Dr. C.H. stated that the onset of tinnitus being 2008, there is not enough to support a claim that tinnitus was caused by noise in the military. The Board finds the VA audiologists' opinions to be competent, credible, and highly probative. The VA audiologists reviewed the pertinent evidence, accounted for the Veteran's lay statements, examined the Veteran, then provided an opinion based on the evidence and medical principles. Conversely, Dr. T.C.'s opinion is competent and credible but of less probative value. Specifically, the opinion from Dr. T.C. failed to account for the relevant medical evidence that showed that the Veteran complained of hearing loss and tinnitus following his fall in 2008. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, treatment records prior to 2008 were silent on complaints or treatment for hearing loss or tinnitus. See Private treatment records. In fact, in a January 2011 private treatment record, the examiner noted that the Veteran had a history of recurrent vertigo, fullness of the ear, pressure and ringing and fluctuating hearing loss, which all developed after a fall from a height of 14 feet in October 2008. Although the Veteran is competent on lay observable symptoms such as ringing in the ears and hearing acuity, the Veteran provided inconsistent statements regarding its onset. As such, the Board finds that the more probative evidence shows that the Veteran's hearing loss and tinnitus were caused by his fall from October 2008, as opposed to active-duty service. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § § 3.159 (2019). 1. Entitlement to service connection for cervical spine degenerative disc disease (DDD) is remanded. 2. Entitlement to service connection for lumbar spine degenerative disc disease (DDD) is remanded. 3. Entitlement to service connection for right shoulder disorder is remanded. 4. Entitlement to service connection for right hip disorder is remanded. 5. Entitlement to service connection for right ankle disorder is remanded. 6. Entitlement to service connection for left ankle disorder is remanded. 7. Entitlement to service connection for fibromyalgia, to include as a Gulf War illness is remanded. 8. Entitlement to service connection for chronic fatigue syndrome (CFS), to include as a Gulf War illness is remanded. 9. Entitlement to service connection for irritable bowel syndrome (IBS), to include as a Gulf War illness is remanded. 10. Entitlement to service connection for migraine headaches, as secondary to fibromyalgia and CFS is remanded. 11. Entitlement to service connection for a Gulf War illness is remanded. 12. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Here, a Stegall remand is required because the AOJ did not substantially comply with the Board's August 2019 remand. Specifically, in the August 2019 remand, the Board directed the AOJ to obtain opinions regarding the etiology of the disabilities listed above. Yet, Dr. D.O.'s opinions simply reiterated the AOJ's rating decision narratives as to why the claims were denied. See August 2012 rating decision codesheet ; see also July 2021 medical opinions. As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. Furthermore, Dr. A.B. provided a medical opinion regarding the Veteran's IBS. In the May 2021 opinion, Dr. A.B. opined that the Veteran's IBS was less likely than not related to a specific exposure event experienced during service in Southwest Asia. Dr. A.B. reasoned that the Veteran's STRs were silent for complaints/issues events, diagnosis, or treatment of IBS, CFS and fibromyalgia. The Board notes that although the STRs are silent, the Veteran contends that the immunizations and toxins he was exposed to during service caused his condition. Although supplied with this information, Dr. A.B. did not account for the Veteran's contentions, which renders her opinion inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion is inadequate where the examiner fails to properly account for competent lay evidence). As such, an addendum opinion is warranted. Lastly, the TDIU issues is inextricably intertwined with the claims being remanded for further evidentiary development. Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered now. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, obtain opinions regarding the etiology of the Veteran's: (a) cervical spine disability; (b) lumbar spine disability; (c) right shoulder disability; (d) right hip disability; (e) bilateral ankle disability (f) fibromyalgia; (g) chronic fatigue syndrome; (h) irritable bowel syndrome; (i) headaches; and (j) Gulf War illness, if diagnosed. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The VA examiners must review the complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiners. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The respective VA examiner(s) should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's cervical spine disability had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's lumbar spine disability had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right shoulder disability had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (d.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right hip disability, if diagnosed, had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (e.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral ankle disability had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (f.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's fibromyalgia had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as part of a Gulf War illness. (g.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's chronic fatigue syndrome had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as part of a Gulf War illness. (h.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's irritable bowel syndrome had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as part of a Gulf War illness. (i.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's headaches had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (j.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's headaches were caused or aggravated by his fibromyalgia or chronic fatigue syndrome. (k.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's cervical spine disability had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). (Continued on the next page) 3. The examiner(s) should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider(s) must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If the claims remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.