Citation Nr: 21067664 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 13-31 609 DATE: November 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a low back condition is remanded. FINDING OF FACT The most probative evidence of record shows the Veteran's bilateral hearing loss is not etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 8 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to October 1967 and from February 1971 to October 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2010 and November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal period, RO granted service connection for painful motion of left thumb, left index finger, left long finger, left little finger, and left ring finger, and for left-hand arthritis (previously, characterized as service connection for left hand disability). The Veteran has not disputed either the effective date for the award of service connection or the rating assigned for any of these conditions. Thus, these claims are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (clarifying that an appeal regarding downstream elements, i.e., the disability rating and effective date, is separate from any prior appeal regarding entitlement to service connection). Since the issuance of the March 2020 and April 2020 supplemental statements of the case (SSOCs), additional evidence, to include VA examinations and VA treatment records, has been associated with the Veteran's claims file. However, the Board finds a waiver of RO's initial consideration not required, as these records either pertain to other irrelevant conditions or include only duplicative records already of record. The Board remanded service connection claims for bilateral hearing loss and low back condition in May 2015, and claims for right and left knee disabilities in June 2019. After reviewing all pertinent records, the Board finds substantial compliance with the May 2015 remand directivesas the requested VA examinations and all available service treatment records were obtained and associated with the Veteran's claims filebut not with the June 2019 remand directives, as the recently obtained VA medical nexus opinion for the right/left knee disabilities is inadequate, and thus, finds another remand required for the bilateral knee disabilities. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, while there has been substantial compliance with the May 2015 remand directives as to the back claim, the representative has submitted new articles relevant to the low back condition not considered by the May 2015 VA examination, and the Board finds another remand is required for this claim as well. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with respect to the hearing loss claim being decided at this time. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim on appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. See 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The disease does not have to be diagnosed within the presumptive period, but it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. See 38 C.F.R. §§ 3.303 (b), 3.307. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is due to in-service noise exposure while serving as a flight crew member on B52 aircraft, and that the headset and helmet he was required to wear while carrying out his duties did not provide adequate noise protection. The Veteran's representative also indicated that the Veteran was exposed to noise during his first active duty period, as shown by service records documenting an award for his expert rifle skills. In his VA 21-526 form, he indicated that his hearing loss began in 1982, and in a May 2018 correspondence, he stated that his hearing loss started as a result of a sudden aircraft decompression while on a flight mission on December 3, 1976. It is not in dispute that the Veteran has a current hearing loss disability for VA compensation purposes. His 1971 Air Force entrance examination shows audiological results within normal limits, and his multiple annual flight examinations also show audiological results within normal limits. During an August 1992 examination, the Veteran was diagnosed with mild high frequency hearing loss based on an auditory threshold of 25 decibels at 6000 Hertz in the left ear. See Hensley v. Brown, 5 Vet. App. 155, 157 (holding defective hearing is characterized by hearing acuity greater than 20 decibels). While his service treatment records do not include a separation examination (as confirmed by the RO per the previous Board remand instruction), the Veteran's last audiogram conducted two months prior to his separation (in August 1993) showed audiological results within normal limits. As noted in the May 2015 Board remand, the Veteran's noise exposure in service has already been conceded, based on his military occupational specialties (MOS)electronic warfare navigator and air operations navigator. See DD-214 form. Thus, the dispositive question at issue is whether the Veteran's current bilateral hearing loss disability is etiologically related to the conceded in-service noise exposure. The Veteran first underwent a VA examination for this condition in February 2010. However, as noted in the May 2015 Board remand, the Board finds this medical nexus opinion inadequate for various reasonsi.e., the examiner having opined based on an inaccurate factual premise regarding service treatment records (see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis)), and the examiner having furnished a negative nexus opinion by noting that hearing at separation was within normal limits while such a fact does not preclude service connection for hearing loss disability (see Hensley v. Brown, 5 Vet. App, 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992)). Thus, the Board previously remanded for a new medical addendum opinion, and the Board will not assign any probative value to this opinion. Since then, a new VA examination/medical nexus opinion has been obtained in April 2016. Even after acknowledging the Veteran's report of in-service noise exposure, the examiner ultimately opined that the Veteran's bilateral hearing loss is likely due to other factors, such as aging, and cited to the Institute of Medicine (IOM)'s study suggesting delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is very unlikely. The examiner pointed out that the Veteran's hearing was normal at discharge and also years after separating from service (as evidenced in the February 2010 VA examination), indicative of a long delay in the onset of his hearing loss. Additionally, the examiner underlined the use of the Veteran's word recognition score being inappropriate, and further opined that the Veteran has language difficulties, cognitive difficulties, and inconsistent word recognition scores. The examiner explained that "[the Veteran's] poor word recognition scores may indicate the presence of a processing disorder or cognitive impairment, both of which are not caused by military noise exposure." Moreover, despite acknowledging a significant threshold shift present on several audiograms during service, which the examiner noted to be consistent with the Veteran's reported military noise exposure, the examiner pointed out that thresholds remained within normal limits for VA purposes during active duty service. Last, but not least, with regards to the "mild high frequency hearing loss of the left ear" documented in his August 1992 examination, the examiner noted that such is an inaccurate description of the results, as normal hearing is present bilaterally. The Board assigns the most probative value to this opinion, as this was furnished after extensive review of all pertinent records, to include service treatment records and post-service treatment records. There is no other medical nexus opinion of record. The Board acknowledges the representative's argument that the Veteran clearly did not have any language or cognitive difficulties during service as he would have been unable to perform his military duties, and also that a Gulf War examination should be provided in light of the April 2016 examination that raises the possibility of some sort of cognitive impairment. While the representative seems to be suggesting a possibility of an undiagnosed disability associated with cognitive/language difficulties and impairment, the Board underlines that a service connection claim for cognitive/language disability is not currently on appeal. Instead, only the claim for service connection for bilateral hearing loss is currently on appealand because the Veteran has been diagnosed with bilateral hearing loss, there is no "qualifying chronic disability" under 38 C.F.R. § 3.317(a) for warranting a Gulf War examination. Thus, the Veteran should separately file a claim for service connection for cognitive/language disability, if he wishes to do so. In addition, even though the Veteran's bilateral hearing loss is a "chronic disease" under 38 C.F.R. § 3.309, the Board finds that he is not entitled to presumptive service connection for this condition. See 38 C.F.R. § 3.303 (b). There is no evidence showing that the Veteran's current bilateral hearing loss became manifest to a compensable degree within one year of discharge. Although there is no separation examination, the audiogram conducted close to his separation (in August 1993; which was the last audiogram conducted in service) showed audiological results within normal limits. There is also no evidence that he was diagnosed with bilateral hearing loss within presumptive period, and the Veteran has not alleged otherwise. Moreover, the weight of the evidence is against a finding of continuity of symptomatology since separation. Although the Veteran indicated in the February 1996 claim that his hearing loss began in 1982, it appears that he first sought treatment post-separation from 1996, 3 years after separating from serviceand even then, it does not appear that he reported any hearing loss problems, but reported only other non-hearing loss related problems, which tends to weigh heavily against any evidence of continuity of symptomatology. The Board also considered the Veteran's lay assertion that his bilateral hearing loss resulted from his in-service noise exposure. While a lay person is certainly competent to report matters within his own personal knowledge, a lay person without appropriate medical training and expertise simply is not competent to opine on more complex medical questions. In this case, the Veteran had not demonstrated any medical training/expertise appropriate for furnishing a medical nexus opinion. Thus, the Board gives no probative value to the lay assertion to that extent and gives more probative value to the April 2016 VA medical nexus opinion. In summary, the Board concludes that the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Thus, the benefit-of-the-doubt doctrine does not apply, and his claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. While a VA examination was obtained for the bilateral knee disability post-June 2019 Board remand, the January 2020 VA examiner provided a negative nexus medical opinion that is speculative and conclusive in nature, not supported by concrete factual findings ("my opinion is that there is no nexus for right or left knee arthritis conditions from service, so I cannot opine [sic] that the current right and left knee arthritis that led [sic] to bilateral TKR surgery is due to an event, injury, or illness during service without resorting to mere speculation. The letters in support of claim only are speculative that the knees OA/DJD had onset while in service"). Thus, the Board finds a new medical addendum opinion is required. 3. Entitlement to service connection for a low back condition The Veteran seeks service connection for a low back condition, which he contends is due to years of sitting in a B-52 ejection seat while serving as a pilot in the Air Force. He also contends that he has undergone multiple back surgeries thereafter post-service. It is not in question that the Veteran has a current low back disability, as he has been diagnosed with various conditions, to include lumbar degenerative disc disease, lumbar spinal stenosis, lumbar spondylosis, kyphosis, neurogenic claudication, and neurogenic/radicular leg pain, during the appeal period. The Veteran's service treatment records include treatment for back symptoms. In August 1991, he complained of a mild, dull ache in his lower back, and he was diagnosed with a possible muscle strain of the lower back. In March 1993, he complained of a dull, aching pain in his back with a throbbing pain radiating to his left upper arm, for which he was diagnosed with a pulled muscle. The April 2016 VA examination obtained post-Board remand resulted in a negative nexus opinion, and the examiner stated, in part, that there is no medical literature supporting B-52 ejection seat for a period of time eventually leading to deterioration of the thoracolumbar spine, and also noted that despite in-service documentation of muscular strain diagnosis, there is no documented discussion about a causative factor for his thoracolumbar pain being associated with sitting in B-52 ejection seat. The Veteran's representative has disputed the adequacy of the April 2016 VA back examination and of the examiner. See November 2017 correspondence. The representative contended that (1) that the examiner failed to consider the purpose of B-52 ejection seat (eject passengers from the aircraft during emergencies) in furnishing a negative nexus opinion, and that it is reasonable to infer the Veteran would have participated in training exercises, to include emergency ejections, in light of his military occupational specialty (MOS) of navigator/air operations officer; and also submitted (2) an article that compares the impact response of a proposed seat cushion to that of the B-52 ejection seat cushion and a baseline no-cushion configuration, and contended that this article suggests a risk of spinal injury with the use of B-52 ejection seat. The examiner has not specifically addressed these points in furnishing the opinion. In addition, while the examiner opined that "it is less likely than not that the Veteran had lumbar spine arthritis within one year of discharge because he did not seek medical attention or complained of pain," the representative submitted an article showing that "arthritis symptoms may come and go over time with varying degrees of severity," and further contended that most people are not likely to seek treatment unless symptoms are severe. As these articles seemingly contain relevant information that has not been addressed by the April 2016 VA examiner, the Board finds it necessary to remand for obtaining a medical addendum opinion that takes into consideration these articles/contentions raised by the representative. The Veteran's representative also raised that the Veteran had active duty in Operation Desert Shield/Storm from August 2, 1990 to October 31, 1993, which entitles him to presumptive service connection for illnesses associated with service in the Persian Gulf War and/or that the Veteran should be provided with a Gulf War examination to determine whether his back disability with associated neuropathy may be a manifestation of an undiagnosed illness or chronic multi-symptom illness. However, to the extent that the Veteran has been diagnosed with multiple back disabilities and there is no suggestion of any type of undiagnosed illness, the Board finds a Gulf War examination is not required. The matters are REMANDED for the following action: 1. Obtain a medical addendum opinion for the left knee disability and right knee disability from the January 2020 VA examiner, or another VA examiner, if he is no longer available. The examiner must note review of the complete record, including this remand, and answer the following questions with full rationales: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current right knee disability and left knee disability had their inception during active service, whether arthritis was manifest to a compensable degree in these joints within one year of separation from active duty, or whether the current right knee disability and left knee disability are otherwise causally related to active service or any incident therein. The examiner must note his or her review of the complete record, including this remand. If the requested opinion is not possible without resort to mere speculation, then the examiner must explain why. If the examiner cannot provide any requested findings without another VA examination, then the AOJ must schedule one. 2. Obtain a medical addendum opinion from the April 2016 VA examiner, or another VA examiner, if he is no longer available. The examiner must note review of the complete record, including this remand, and answer the following questions with full rationales: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current back condition is related to an in-service injury, event, or disease, to include the documented in-service back injuries and sitting in a B-52 ejection seat for many years. In doing so, the examiner should specifically address Articles submitted by the Veteran's representative in November 2017 (plausibly suggestive of risk of spinal injury with the use of B-52 ejection seat) The role of B-52 ejection seat, if any (ie. eject passengers from the aircraft during emergencies) August 1991 service treatment records showing complaint of lower back pain and possible muscle strain in lower back and a diagnosis of a possible pleurisy and treatment with anti-inflammatory agent March 1993 service treatment records documenting complaint of pulled back muscle and a diagnosis of back muscle ache The examiner should also specifically state whether it is at least as likely as not that the Veteran had arthritis of the lumbar spine within one year of his discharge in October 1993. In doing so, the examiner should also consider and address an article submitted by the Veteran's representative in November 2017 ("arthritis symptoms that may come and go over time with varying degrees of severity"). The examiner must note his or her review of the complete record, including this remand. If the requested opinion is not possible without resort to mere speculation, then the examiner must explain why. If the examiner cannot provide any requested findings without another VA examination, then the AOJ must schedule one. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.