Citation Nr: 21068646 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-38 979 DATE: November 12, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to special monthly compensation (SMC) based on loss of use of the bilateral lower extremities is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran's left ear hearing loss disability is attributable to his period of active military service. 2. Resolving reasonable doubt in his favor, the Veteran's right ear hearing loss disability is attributable to his period of active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to August 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded in November 2018 and again in June 2021 for adequate medical opinions and to retrieve medical records that had been scanned into VistA including an October 2019 EMG record from Physical Medicine and Rehabilitation via outpatient community care and records. The Board initially notes that the issue of service connection for radicular pain of the groin and testicles was previously remanded with the above claims. During the pendency of this appeal, a September 2021 rating action granted in full the benefit sought on appeal with respect to the issue of service connection for radicular pain of the groin and testicles. As the grant of service connection is considered a full grant of benefits, this issue is no longer on appeal and will not be addressed in this Board decision. The Board finds that with respect to the issues of service connection for left ear hearing loss, and service connection for right ear hearing loss, there has been substantial compliance. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible with respect to these issues. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board's remand instructions were substantially complied with). However, with respect to the issue of SMC based on loss of use of the bilateral lower extremities, the Board finds that there has not been substantial compliance. As discussed in further detail below, the RO has not complied with the instructions from the June 2021 remand with respect to this matter. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. The Veteran asserts that his left and right ear hearing loss disabilities are related to exposure to hazardous noise during active duty service. The Board initially notes that the Veteran is service connected for tinnitus effective March 2013. See Rating Decision Codesheet Received September 2021. Service connection may be granted for chronic disabilities, such as sensorineural hearing loss, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley at 155, indicated that 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. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that 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. See 38 C.F.R. § 3.303(d). The Board also notes that the absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When the Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley, 5 Vet. App. at 159-160. The Veteran's service treatment records are silent for any complaints, symptoms, or treatment for left ear hearing loss. The Veteran's post service treatment records indicate that the Veteran has had ongoing difficulty with his hearing loss disability. A treatment record dated January 2011 states that the Veteran's hearing is getting worse and is attributed to noise of aircraft. See VA Medical Treatment Record Received May 2011. During a February 2013 private audiological evaluation by audiologist Dr. S.P.C, the Veteran demonstrated bilateral hearing loss for VA purposes. VA examiners in December 2013, August 2019, and September 2021 assessed the Veteran with left ear hearing loss but not right ear hearing loss. The Board notes that the February 2013 examination was conducted by a board-certified audiologist. The Board notes that although subsequent VA examinations do not show that the Veteran had right ear hearing loss for VA purposes, the Veteran is only required to demonstrate that he had the disability during the period on appeal in order for it to be considered a current disability. The Board highlights the fact that for a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran has VA hearing loss for VA purposes. Therefore, the first element of service connection is met. The Veteran's military occupational specialty was tactical aircraft maintenance specialist. As such, the Veteran's exposure to hazardous noise during service has been conceded and the second element of service connection is met. Thus, this appeal turns on the third element: whether there is a nexus between he Veteran's current hearing loss and his service. In a private medical opinion in February 2013, chiropractor Dr. P.Y. stated that the Veteran was exposed to the acoustic trauma of shop noise (compressors, air tools, etc.) and flight line noise while in service and has suffered from progressive bilateral hearing loss. The examiner opined that it is more likely than not that bilateral hearing loss is directly and causally related to the acoustic trauma in service and thus is more likely than not directly and causally related to military service. However, the Board in 2018 determined this private opinion was inadequate for decision-making purposes. Therefore, it is afforded no probative value. Although the December 2013 VA examiner opined that the Veteran's left ear hearing loss is less likely than not related to his period of service, the Board in November 2018 found this opinion to be inadequate for decision-making purposes and remanded the claim for an adequate VA examination and opinion. The Board notes that the Veteran was afforded another VA examination in August 2019. However, in June 2021, the Board found the August 2019 examination and opinion inadequate for decision-making purposes and again remanded for another VA examination and opinion. The Veteran was afforded another examination to assess his hearing loss in September 2021. The examiner essentially provided the same rationale for finding that left ear and right ear hearing loss was less likely than not caused by or the result of military service. The examiner stated that the Veteran's reports and MOS placed him in situations with hazardous noise during service. The examiner also stated that the Veteran's MOS as Tactical Aircraft Maintenance Specialist has a high probability for hazardous noise. Moreover, the examiner stated that the Veteran's entry hearing test revealed hearing within normal limits bilaterally and the separation hearing test revealed hearing within normal limits bilaterally and noted that there were no significant threshold shifts. The examiner also acknowledged that the Veteran is service connected for tinnitus and stated that tinnitus due to noise can be present with or without measurable hearing loss and stated that the presence of tinnitus does not indicate or guarantee the presence of hearing loss and vice versa. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its entirety. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether statements and testimony by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As an initial matter, the Board notes that hearing loss manifest the types of symptoms that are readily amenable to lay observation as they are subjective to the claimant. The Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The VA examination reports and treatment records note the Veteran's continued reports detailing his hearing loss symptoms as well as his contention that he was exposed to hazardous noise in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. Thus, his statements are credible and probative. In resolving reasonable doubt in the Veteran's favor, a grant of service connection for left ear and right ear hearing loss is warranted. The February 2013 private audiological examination demonstrated left ear and right ear hearing loss for VA purposes which the Veteran has reported stemmed from service. The Board is persuaded that given the documented facts by the February 2013 private audiological examiner as well as the subsequent September 2021 examination report that explicitly acknowledges that the Veteran had an MOS as a Tactical Aircraft Maintenance Specialist which has a high probability for hazardous noise, it is more likely than not that his bilateral hearing loss is associated with service. Furthermore, the Board finds that the Veteran's post service treatment records further establish that the Veteran's hearing was progressively getting worse and is attributed to noise of aircraft. While the Board cannot ignore or disregard the September 2021 VA audiologist's medical conclusions, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the September 2021VA examiner's opinion is problematic because it does not give due weight to the Veteran's competent account of the onset of symptoms in service and the impact of his duties as a tactical aircraft maintenance specialist and instead relies primarily on the fact that the Veteran did not have hearing loss at the time of separation from service. It also relied on the lack of a significant threshold shift in the Veteran's hearing upon leaving service, which is not a bar to service connection. Additionally, the September 2021 opinion does not provide an assessment or offer any insight regarding possible delayed onset of hearing loss that may be associated with the documented in-service hazardous noise exposure. As such, the Board finds that the September 2021 VA audiological examination does not have much probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Indeed, the lack of any evidence showing that the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss, to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Where there is no evidence of the Veteran's hearing disability until many years after separation from service, "if evidence should sufficiently demonstrate a medical relationship between the appellant's in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Therefore, the September 2021 VA examiner's opinion cannot serve as the basis of a denial. The Veteran's assertions, post service treatment records, and military personnel records of his documented exposure to hazardous noise during active duty support that service connection is warranted for left and right hearing loss. Accordingly, with resolution of reasonable doubt in the Veteran's favor, service connection for left ear hearing loss and right ear hearing loss is warranted. REASONS FOR REMAND Entitlement to special monthly compensation (SMC) based on loss of use of the bilateral lower extremities is remanded. The Board notes that this matter was previously remanded in a June 2021 Board decision as the evidence indicated that additional private and VA treatment records, including from Physical Medicine & Rehabilitation via outpatient community care and records of an October 2019 EMG had been scanned into VistA. At the time of the Board's June 2021 remand the VistA records had not been associated with the claims file. Since the Board's June 2021 remand, CAPRI treatment records that were retrieved from the VistA system were received in July 2021 and associated with the file; however, these Vista records range from April 2020 to June 2021. The file does not include a VistA record pertaining to the October 2019 EMG from Physical Medicine & Rehabilitation and it is not clear if the record could not be retrieved or if the specific record was not actually requested. Moreover, VA treatment records received in July 2021 include a Community Care Emergency Room entry noting a June 27, 2020, ER visit in a scanned document in VistA Imaging but it is unclear if that document is of record. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The Board finds that in light of the above the Veteran's claim for SMC loss of use of bilateral lower extremities must be remanded to retrieve the treatment records in VistA and to ensure substantial compliance with the prior remand directives. This matter is REMANDED for the following action: 1. Associate copies of all treatment records that have been scanned into the VistA Imaging system, including from Physical Medicine & Rehabilitation and an October 2019 EMG, and the scanned document from the July 2020 Community Care Emergency Room entry noting a June 27, 2020, ER visit, with the Veteran's claims folder. The Board reminds the AOJ that the Board does not have access to VistA Imaging, so any documentation of these entries must be printed from VistA and uploaded/added to the Veteran's VBMS or Virtual VA file. If the referenced documents cannot be obtained and associated with the claims-file for review, documentation to this effect must be clearly noted in the Veteran's claims file and the Veteran must be duly notified. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.