Citation Nr: 21069149 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-14 876 DATE: November 17, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to service connection for a headache disorder is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected left knee disability is remanded. FINDING OF FACT The weight of the probative evidence of record shows that the Veteran's pre-existing right ear hearing loss was permanently aggravated by his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 2003 to May 2004. Thereafter, he served in the U.S. Army Reserves. Service Connection 1. Entitlement to service connection for right ear hearing loss Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Every veteran shall be taken 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and clear and unmistakable evidence demonstrates that the injury or disease was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a disorder is found to preexist service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). However, aggravation of a preexisting condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). VA, rather than the claimant, bears the burden of proving that the disability at issue preexisted entry into service, and that the disability was not aggravated by service, before the presumption of soundness on entrance into active service may be rebutted. See also Cotant v. Principi, 17 Vet. App. 116 (2003). Temporary or intermittent flare-ups of the preexisting disorder during service are not sufficient to be considered aggravation unless the underlying disability (as contrasted to symptoms) has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). After thorough review of the evidence of record, the Board concludes that entitlement to service connection for right ear hearing loss is warranted. First, there is evidence of a current right ear hearing loss disability. A June 2021 VA examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 45 65 75 The Veteran's Maryland CNC speech recognition score was 100 percent in the right ear. As the auditory thresholds for at least one of the frequencies was 40 decibels or greater in the right ear, the evidence establishes a right ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Second, there is evidence that the Veteran's right ear hearing loss pre-existed his active duty service and was aggravated thereby. Initially, the Board acknowledges that the Veteran's enlistment examination for his period of active duty service from March 2003 to May 2004 is not of record; however, a January 2001 Army Reserve Enlistment Examination reflects right ear auditory thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 15 35 While the January 2001 audiogram does not demonstrate right ear hearing loss for VA purposes, it does show right ear impaired hearing at the higher auditory thresholds. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss). Accordingly, the Board finds that right ear hearing loss was demonstrated prior to service entrance, and the presumption of soundness does not apply. See 38 U.S.C. § 1111. The Board will, therefore, consider whether service connection is warranted on the basis of aggravation of a pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004) (concluding that "if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder"). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). It is the veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the pre-existing disability increased in severity during service for the presumption of aggravation to attach. See Wagner, 370 F.3d at 1096; Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (stating that the question of whether a preexisting defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches"). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. See Wagner, 370 F.3d at 1096; Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); 38 C.F.R. § 3.306(b). The Board concludes that the weight of the probative evidence of record shows that the Veteran's right ear hearing loss was aggravated by his active duty service. In that regard, there are medical opinions both in favor of and against the Veteran's claim. In a June 2014 VA opinion, the VA examiner concluded that it was at least as likely as not that the Veteran's hearing loss was aggravated by in-service noise exposure. The June 2014 VA opinion was based upon a review of the Veteran's service treatment records and the evidence in the claims file. In contrast, an April 2014 VA examiner opined that the Veteran's hearing loss was not aggravated by his active duty service; however, the opinion was based upon a lack of evidence in the service treatment records and the Veteran's military occupational specialty which had a low likelihood of hazardous noise exposure. The examiner did not address the Veteran's competent lay statements of experiencing hearing loss symptoms since basic training. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Because the April 2014 VA opinion was based primarily upon a lack of evidence in the service treatment records, which the Board notes are incomplete, and did not consider the Veteran's competent lay statements of in-service symptomatology, the Board affords little probative value to the April 2014 VA opinion. The Board concludes that the probative evidence of record is at least in equipoise as to whether the Veteran's pre-existing right ear hearing loss was aggravated by his active duty service. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). In this case, the only probative evidence of record discussing the etiology of the Veteran's right ear hearing loss reflects that the right ear hearing loss was aggravated by his active duty service. There is no evidence in the claims file to suggest that the increase in disability caused by the Veteran's active duty service was due to the natural progress of the disease The Board therefore concludes that a grant of service connection for right ear hearing loss is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). REASONS FOR REMAND Entitlement to service connection for a headache disorder; entitlement to service connection for residuals of a TBI; and entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected left knee disability Review of the record reveals that, although some service treatment records have been associated with the Veteran's claims file, those records are incomplete. Additionally, the Veteran has reported instances of treatment during service which do not appear in the records associated with the file. The Board notes that the Veteran had service with the U.S. Army Reserves after the completion of his active duty service in May 2004, but the Veteran's service treatment records from his service with the Reserves have also not been associated with the claims file. Accordingly, the Agency of Original Jurisdiction (AOJ) should take additional measures to obtain the Veteran's service treatment records for his active duty service and his service with the U.S. Army Reserves. Additionally, a new VA examination is warranted to assess the etiology of the Veteran's lumbar spine disorder. Although a VA opinion was obtained in April 2014, the VA examiner's opinion that the Veteran's left knee disorder did not "account for or cause" the Veteran's low back disorder does not address whether the low back disorder was aggravated by the service-connected left knee disability. Also, a new VA examination should be obtained to determine whether the Veteran's migraine headache disorder is secondary to his service-connected sinusitis. During a June 2021 VA examination for sinusitis, the VA examiner listed headaches as a symptom of the Veteran's sinusitis. As the Veteran has been diagnosed with a migraine headache disability and the June 2021 VA examination suggests that the Veteran's headaches may be related to his service-connected sinusitis, a new VA examination should be obtained to determine whether the Veteran's migraine headache disability was caused or aggravated by his service-connected sinusitis. Last, the Veteran should be provided with a VA examination to address the existence and etiology of his TBI. Initially, the Board notes that the Veteran's VA treatment records contain a diagnosis of multiple TBI's. Additionally, the Veteran has provided lay statements of various in-service head injuries. As the Veteran has not been afforded a VA examination to determine the existence and etiology of his claimed TBI, a VA examination should be obtained. The matters are REMANDED for the following action: 1. Conduct the appropriate development to identify and obtain all of the Veteran's outstanding medical treatment records from his active duty service and from his service with the U.S. Army Reserves. Such development should include contacting all appropriate repositories of records, including the Records Management Center and/or the Veteran's Reserves unit to determine whether any of the Veteran's medical treatment records from his active duty service and/or his Reserve service are available. Any such records, or a negative response, should be included in the claims file. 2. Provide the Veteran with a new VA examination by appropriate physician to determine the etiology of his lumbar spine disorder. To the extent possible, the examiner should be different from the April 2014 examiner. The Veteran's claims file and a copy of this remand must be reviewed by the examiner, and the examiners must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran's lay statements, the VA examiner must opine as to whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's lumbar spine disorder was proximately due to or aggravated by his service-connected left knee disorder. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that lumbar spine disorder was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner must consider and discuss the Veteran's lay statements and is advised that the Veteran is competent to report observable symptomatology. 3. Provide the Veteran with a VA examination by appropriate physician to determine the etiology of his migraine headache disability. To the extent possible, the examiner should be different from the June 2021 examiner. The Veteran's claims file and a copy of this remand must be reviewed by the examiner, and the examiners must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran's lay statements, the VA examiner must opine as to whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's migraine headache disability was proximately due to or aggravated by his service-connected sinusitis. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that migraine headache disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner must consider and discuss the Veteran's lay statements and is advised that the Veteran is competent to report observable symptomatology. 4. Provide the Veteran with a VA examination by an appropriate physician to determine the existence and etiology of his TBI. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must state whether the Veteran has a current diagnosis of a TBI. In determining whether a diagnosis is warranted, the examiner is asked to specifically address the VA treatment records which note a diagnosis of multiple TBI's. If a diagnosis is rendered, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's TBI was caused or incurred as a result of the Veteran's active duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran's lay statements regarding in-service and post-service symptomatology noted throughout the record, including in the VA and private medical treatment records. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.