Citation Nr: 21067767 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-14 524A DATE: November 5, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for bilateral upper extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2013 and December 2015 rating decisions. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2018. A transcript of the proceeding is of record. The Board remanded the case for further development in August 2018 and July 2020. The case has since been returned to the Board for appellate review. The Board notes that the Veteran's appeal had originally included the issues of entitlement to service connection for a bilateral knee disorder, a bilateral hip disorders, bilateral lower extremity radiculopathy, and a lumbar spine disorder. However, during the pendency of the appeal, the agency of original jurisdiction (AOJ) granted service connection for those disabilities in a November 2020 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal. See Graham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). As such, these issues are no longer in appellate status and no longer before the Board. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Upon review, the Board finds that additional development is still needed prior to adjudication of the issues remaining on appeal. An October 2020 VA examiner found that the Veteran's hearing was within normal limits in service without any significant shifts. He also noted that the Veteran's military occupational specialty had a low risk of noise exposure even if he was around large laundry machines. The examiner further indicated that his current hearing loss is an upsloping type of hearing loss, whereas noise-induced hearing loss is a down sloping type. Thus, the examiner stated that the Veteran's hearing loss pattern is not consistent with noise exposure. In addition, the examiner commented that congenital indicates that hearing loss has been present at birth. However, in this case, he noted that the audiograms from enlistment to separation were both within normal limits, which means that there is no evidence of a congenital hearing loss. In another report, the examiner stated that there is no evidence of congenital disease, that the Veteran's hearing was affected by his military service, or that there was any progression in a loss of hearing while in the service. Therefore, he ultimately concluded that it was less likely than not that the Veteran's bilateral hearing loss manifested in or is otherwise causally or etiologically related to his military service. Nevertheless, the Board notes that the October 2020 VA examiner did not address the August 1979 report of medical history noting that the Veteran had failed a hearing test in 1977. Nor did he address the May 2006 and July 2006 VA treatment records indicating that the test results were consistent with congenital hearing loss. Therefore, the Board finds that an additional medical opinion is needed. Moreover, in an October 2020 VA medical opinion, an examiner opined that the Veteran's bilateral upper extremity radiculopathy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that the Veteran had been seen for numbness in his fingers in 1981, but that the remainder of the records was silent since that time, which was indicative of an acute condition. The examiner also noted that the Veteran has been diagnosed with mild cervical spondylosis and degenerative disc disease at C-5 and C-6, which would explain the right and left upper extremity radiculopathy that occurred many years after his separation from service. He stated that there is no nexus or causality established between the current right and left upper extremity radiculopathy and the numbness in the Veteran's fingers during service. Therefore, the examiner concluded that it is less likely than not that his current right and left upper extremity radiculopathy manifested in or is otherwise causally or etiologically related to his military service. The October 2020 VA examiner also opined that it is less likely than not that the Veteran's current right and left upper extremity radiculopathy was caused by a service-connected disability, to include bilateral pes planus. He explained that it is not anatomically possible that pes planus will affect the upper extremities and that the disorder is due to another etiology. In addition, the October 2020 VA examiner indicated that there is not enough medical evidence to support or confirm aggravation due to his service-connected pes planus. He noted that the Veteran was seen for numbness of the fingers in 1981, but that the records did not show continuous symptoms of radiculopathy that was incurred in service. Therefore, the examiner opined that it is less likely than not that the Veteran's current right and left upper extremity radiculopathy was aggravated by a service-connected disability, to include bilateral pes planus. Nevertheless, the Board finds the October 2020 VA examiner's rationale for the aggravation opinion to be inadequate. It is unclear as to how the lack of continuity pertains to the aggravation prong of secondary service connection. Although the examiner did explain why bilateral pes planus would not have caused bilateral upper extremity radiculopathy, he did not explain why the bilateral pes planus would not aggravate the disorder. Nor can the Board infer such rationale based on the explanation regarding causation. The Court has held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018); El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Therefore, the Board finds that an additional VA medical opinion is needed. The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for hearing loss or upper extremity radiculopathy. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After any additional records are associated with the claims file, the AOJ should refer the Veteran's claims file to a different suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's bilateral hearing loss. An additional examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should also be noted 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 indicate whether the Veteran's bilateral hearing loss is a congenital defect or disease. In so doing, he or she should consider the August 1979 report of medical history noting that the Veteran had failed a hearing test in 1977 and the May 2006 and July 2006 VA treatment records indicating that the test results were consistent with congenital hearing loss To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as a congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") If the bilateral hearing loss is a congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran's service. If the bilateral hearing loss is a congenital disease, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's service. If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran's service and whether any increase was due to the natural progression of the disorder. If the bilateral hearing loss is not congenital and/or did not clearly and unmistakably preexist service, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran's military service, to include any noise exposure therein. In rendering this opinion, the examiner should specifically address whether there was a threshold shift during service and the significance, if any, of the existence or absence of such a shift. The examiner should consider the audiogram results from the Veteran's August 1979 enlistment examination and July 1982 separation examination. Additionally, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After any outstanding records are obtained, the AOJ should refer the Veteran's claim file to a VA examiner for a medical opinion as to the nature and etiology of the Veteran's bilateral upper extremity radiculopathy. An additional examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that any current bilateral upper extremity radiculopathy was either caused by or aggravated by a service-connected disability, to include bilateral pes planus. The examiner should address the Veteran's assertion that his bilateral upper extremity radiculopathy is related to an altered gait caused by his service-connected disabilities, including bilateral pes planus. In rendering his or her opinion, the examiner should address both the causation and aggravation prongs in his or her rationale. In other words, even if the Veteran's service-connected disabilities did not cause his bilateral upper extremity radiculopathy, the examiner should still address whether his service-connected disabilities could have worsened his bilateral upper extremity radiculopathy. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) 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. The AOJ should ensure compliance with the prior directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.