Citation Nr: 21068068 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-19 133 DATE: November 9, 2021 ORDER Service connection for a bilateral hearing loss is granted. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, his currently diagnosed bilateral hearing loss disability had its onset during active military service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from September 1980 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). The record indicates that the Veteran requested a hearing as part of his May 2015 substantive appeal (VA Form 9); however, this request was later deemed withdrawn. See Board Decision and Remand dated August 21, 2018 at pg. 3. The Board is aware of the decision of the United States Court of Appeals for Veterans Claims (Court) in Quinn v. Wilkie, 31 Vet. App. 284, 292 (2019), which held that each time a legacy appeal (an appeal adjudicated prior to enactment of the Appeals Modernization Act) is returned to the Board the claimant is entitled to a Board hearing, even if a hearing was held previously. To date, the Veteran has not requested another hearing. In June 2021, the Board remanded the claims for further development, to include the Veteran's identification of relevant medical treatment records, and VA's obtaining outstanding VA treatment records and medical opinions addressing the likely etiology of the Veteran's heart, diabetes mellitus, and OSA disabilities. The record reflects that neither the Veteran nor his representative replied to VA's request to identify medical treatment records relevant to the instant claims. VA opinions dated August 2021 that were obtained pursuant to the Board's June 2021 remand have been associated with the electronic claims file and reviewed. The Board finds there has not been substantial compliance with its June 2021 remand directives in regard to the medical opinions relevant to the Veteran's claims for service connection for a heart disability, diabetes mellitus, and OSA, which again necessitates remand of these claims as detailed below. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Service Connection Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, sensorineural hearing loss (as an organic diseases of the nervous system) is considered a "chronic disease" under 38 C.F.R. § 3.309(a). The presumptive service connection provisions are based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b), and manifestation to a degree of 10 percent within one year under 38 C.F.R. § 3.307 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree at that time. Id. A veteran shall be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1090 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not so noted, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner, 370 F.3d at 1096. 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). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). When considering lay evidence, the Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Generally, the degree of probative value which may be attributed to a medical opinion of record takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examiner had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). Bilateral Hearing Loss The Veteran asserts that his bilateral hearing loss is related to his exposure to hazardous noise in-service. See, e.g., Statement in Support of Claim received January 30, 2015; Appeal to Board of Veterans' Appeals received May 23, 2015. The Veteran is currently diagnosed with bilateral hearing loss that establishes a hearing loss disability for VA purposes. See VA Audiology Consult dated September 14, 2016; VA Hearing Loss and Tinnitus examination dated October 21, 2020; 38 C.F.R. § 3.385. Regarding the second element of in-service incurrence, the Board concedes the Veteran's exposure to hazardous noise during service. The Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214) indicates that while in the Army, his military occupational specialty (MOS) was that of Radio Operator, which has been determined by the Department of Defense to involve a moderate probability of hazardous noise exposure. See VA Fast Letter 10-35 (September 2, 2010) (discussing the Duty MOS Noise Exposure Listing). His DD Form 214 also reflects that the Veteran earned a Sharpshooter Badge using an M-16 rifle as well as a Rifle bar decoration. Notably, the Veteran's recurrent tinnitus is service connected and is due to the acoustic trauma he sustained in service. See VA Medical Opinion dated December 10, 2014; Rating Decision dated December 10, 2014. Evidence in support of the claim includes the Veteran's statements reflected in the January 2015 Statement in Support of Claim and the May 2015 Appeal to Board of Veterans' Appeals, as well as his statement during the October 2020 VA examination describing the onset of his bilateral hearing loss during service. Additionally, neither the service treatment records, nor the service personnel records reflect that hearing protection was worn by the Veteran at all times. The March 2014 correspondence from C.M.Q., M.D., who opined that the Veteran's bilateral hearing loss was more likely than not caused by his in-service exposure to loud noises during military operations, while not adequate for purposes of demonstrating a nexus between his hearing loss and service because the opinion lacks an underlying rationale, is generally supportive of the claim. Therefore, the Board accepts the Veteran's statements and concludes that symptoms of the now diagnosed bilateral hearing loss onset during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Evidence unfavorable to the claim includes an October 2020 VA examination reflecting valid speech discrimination scores as well as valid puretone thresholds reflecting bilateral hearing loss for VA purposes. The Veteran reported that his hearing loss started during military service, and the examiner concluded that the Veteran's MOS of Radio Operator placed him at moderate risk for exposure to hazardous noise levels. Nevertheless, the examiner opined that the Veteran's hearing loss is less likely than not related to service because his service treatment records do not reflect hearing loss, the medical plausibility of delayed onset hearing loss is refuted by a National Academy of Sciences Institute of Medicine (IOM) study indicating that delayed onset hearing loss due to previous noise exposure is unlikely to occur, and a National Institute of Deafness (NID) study reflects that age-related hearing loss commonly occurs as people age. See VA examination dated October 21, 2020 at pg. 5. However, the fact that a clinical diagnosis was not rendered during service is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, the VA examiner did not adequately consider the lay statements of record regarding the onset and continuity of the Veteran's symptoms of a hearing loss. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). While the examiner noted and accepted the Veteran's reports of excessive exposure to noise from gun fire and radio apparatus during service in the context of his tinnitus symptoms, the examiner concluded that because the Veteran was found to have normal hearing in service, his current bilateral hearing loss is less likely than associated with in-service acoustic trauma. See VA Hearing Loss and Tinnitus examination report dated October 12, 2021at pgs. 5-6. Other deficiencies include the examiner's not contemplating the favorable aspects of the IOM report regarding delayed onset hearing loss, McCray v. Wilkie, 31 Vet. App. 243 (2019), and not explaining whether the NID study findings applied to the Veteran's hearing loss. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion based solely on general medical literature without discussion of the veteran's individual circumstances is inadequate). The VA examiner also did not explain why greater weight was assigned to the IOM and NID studies over the Veteran's excessive noise exposure during service or his lay statements of onset of hearing loss during service. For these reasons, the Board finds the October 2020 VA opinion regarding the etiology of the Veteran's hearing loss inadequate to decide the claim and ultimately of no probative value. A December 2014 VA hearing loss examination reflects valid speech recognition scores not indicative of hearing loss, and puretone testing that was deemed invalid. An October 2021 VA hearing loss examination reflects invalid speech recognition scores and puretone test results. As such, these examinations are either inadequate to decide the claim or otherwise of no probative value. See VA Hearing Loss and Tinnitus examinations dated December 3, 2014 and October 12, 2021. The Board considered requesting an additional etiology opinion; however, the Board finds highly probative the September 2016 VA outpatient Audiology Consult, the October 2020 VA examination puretone results, and the Veteran's lay statements regarding the onset of hearing difficulties and his indicating that the symptoms of the disability, to include his bilateral hearing loss symptoms, continued since service, as they are consistent with the medical evidence and the fact that he is service-connected for tinnitus based on the same assertions. Thus, in light of the current diagnoses of bilateral hearing loss disability for VA purposes, the conceded in-service noise exposure, and the competent and credible evidence of continuity of symptomatology since service, the Board finds that, at the very least, the evidence is in equipoise on the question of whether the Veteran's current bilateral hearing loss was incurred in service. Resolving any reasonable doubt in the Veteran's favor, the Board finds that, based on competent and credible evidence of in-service incurrence and continuous post-service symptoms, presumptive service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is again necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Heart, Diabetes Mellitus, OSA Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, a Board remand confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall, supra. The August 2021 VA examiner opined that the Veteran's heart disability, diabetes mellitus, and OSA are less likely than not related to service, explaining that no evidence of symptoms, laboratory results, and/or diagnoses of such disabilities are reflected in the Veteran's service treatment records. See VA medical opinions dated August 24, 2021. The examiner relied heavily on the absence of complaints in the Veteran's service treatment records as the rationale for the negative nexus opinion to the exclusion of other evidence, including the Veteran's lay statements. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Additionally, the examiner noted that the Veteran's diabetes mellitus and OSA were not diagnosed until 17 years and 31 years, respectively, after separation from service; however, the examiner offered no meaning to these time-frames as may be relevant to the etiology of the noted disorders. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). As the opinions are not adequate, they are not sufficient to serve as the basis of denial of entitlement to service connection and are no probative value. Accordingly, remand is necessary to obtain adequate opinions addressing the etiology of the Veteran's heart disorder, diabetes mellitus, and OSA. See Barr, supra; Stegall, supra. The matters are REMANDED for the following action: 1. Implement the Board's decision herein granting service connection for bilateral hearing loss. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Then, obtain addendum opinions from an appropriately qualified VA examiner NOT PREVIOUSLY INVOLVED IN THIS CASE, as to the nature and likely etiology of the Veteran's heart disability, diabetes mellitus, and obstructive sleep apnea. All clinical findings should be reported in detail and correlated to a specific diagnosis. The claims file, and a copy of this Remand, should be made available to the examiner, who will acknowledge receipt and review of these materials. *The examiner's review of the body of this Remand is recommended to assist in avoiding errors that have rendered previous VA opinions inadequate. *The need for another examination(s) is left to the discretion of the medical professional offering the opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Identify all currently diagnosed heart disabilities that have been present at any point since the commencement of the claim period in April 2014. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed heart disabilities onset during service, manifested within one year after service separation, or are otherwise etiologically related to service. The examiner should comment on the in-service report of chest pain as reflected in the March 5, 1988 entry into the Chronological Record of Medical Care (see VBMS entry with document type "STR - Medical," receipt date 09/18/2014, at page 9 of 22). (c) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed diabetes mellitus onset during service, manifested within one year after service separation, or is otherwise etiologically related to service. (d) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed obstructive sleep apnea onset during service or is otherwise etiologically related to service. The examiner should comment on the Veteran's lay report of snoring and hypersomnolence since the 1980s as reflected in the December 2014 VA Sleep Apnea examination (see VBMS entry with document type "C&P Exam," receipt date 12/03/2014, at page 11 of 15). *Notwithstanding the evidence identified herein, the Board's reference to evidence in this context should not be construed as a determination of its credibility. A complete rationale for all opinions is required. 4. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.