Citation Nr: 21070824 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-59 811 DATE: November 26, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. FINDING OF FACT The Veteran's current right ear hearing loss is related to in-service acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1971 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. The Board remanded the appeal for further development in February 2021. Service Connection 1. Entitlement to service connection for right ear hearing loss is granted. The Veteran asserts that his right ear hearing loss is due to a significant amount of hazardous noise exposure during service due to his duties of his military occupational specialty (MOS) as a Nuclear Weapons Maintenance Specialist. Specifically, he maintains that in conjunction with his MOS he was routinely exposed to extensive noise including loud machines, aircraft engines, and weapon fire with no hearing protection. As a result, he asserts that he first began to experience a hearing loss symptomatology during service and his hearing has continued to decline since that time. See January 2016 VA Form 21-4138, December 2016 VA Form 9, and August 2020 Board Hearing Transcript at 4-5. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. § 1110. A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1164 (2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in-service, post-service audiometric findings meet 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 (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, August 2015 and April 2021 VA examination reports demonstrate right ear hearing loss for VA purposes. 38 C.F.R. § 3.385; August 2015 and April 2021 VA examination reports. Thus, element one is established. Regarding the second element of service connection, the Board concedes that the Veteran experienced significant noise exposure during service. Specifically, the Veteran has competently and credibly reported his constant exposure to excessive noise while working as a nuclear weapons maintenance specialist and was routinely subjected to significant noise. Moreover, his DD 214 Form confirms his MOS as a nuclear weapons maintenance specialist, which carries a high probably of hazardous noise exposure, and the Board finds his recollection of his in-service acoustic trauma consistent with the circumstances of his service and MOS. 38 U.S.C. § 1154(a). Therefore, an in-service injury in the form of acoustic trauma is shown and element two is also established. Regarding the third element, nexus, the Board acknowledges the VA examinations conducted in August 2015 and April 2021; however, the Board finds these opinions are both inadequate, as the August 2015 VA examiner relies on the absence of evidence of disability in his service treatment records (STRs) and does not consider the Veteran's conceded in-service acoustic trauma due to his MOS and his statements regarding his continuous and progressively declining hearing loss symptomatology since service and failed to address the possibility of delayed onset hearing loss. Additionally, the April 2021 VA examiner also relies on the absence of evidence of disability in STRs, does not consider whether a nexus between the Veteran's right ear hearing loss and service is medically consistent with his assertion about the onset of his hearing loss during service, which should be assumed as true (specifically requested in the Board's February 2021 remand), does not consider his statements regarding his continuous and progressively declining hearing loss symptomatology since service, and provides limited and insufficient discussion on the possibility of delayed onset hearing loss. Thus, the August 2015 and April 2021 opinions are of no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). And finally, the Board notes the Veteran has competently and credibly reported that he experienced hearing loss symptoms during and since service due to his in-service acoustic trauma and also recalls that his hearing problems have progressed since discharge. See August 2020 Board Hearing Transcript at 4-5; see also 38 U.S.C. §§ 1101(3), 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). At this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); see Andrews v. McDonough, 34 Vet. App. 216 (2021)("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim.") Here, given the Veteran's competent and credible lay statements as to continuity of hearing loss symptomatology since service and conceded in-service noise injury, along with two unfavorable inadequate VA nexus statements, the evidence is in a state of relative equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right ear hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for a right shoulder disability is remanded. Pursuant to the Board's February 2021 remand directives, an addendum opinion was obtained in May 2021. The Board asked the examiner to opine on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed right labral tear, including SLAP, (see August 2015 VA examination report) had its onset during service or is otherwise related to service. In addressing this question, the Board asked the examiner, in relevant part, to discuss: (b)the Veteran's lay statements, which you are to assume as true, that his right shoulder disability is due to the motor vehicle accident, which has continued to cause pain and limited range of motion since that time and (c)Please state whether a nexus between the Veteran's right shoulder labral tear, including SLAP, and service is "medically consistent" with the documented in-service motor vehicle accident and resulting complaints of right shoulder pain and noted mild contusion and the Veteran's reports of continued symptomatology post-service in sub-part (b) above. However, although the examiner noted the motor vehicle accident, he failed to assume as true the Veteran's statements and did not address whether a nexus between the right shoulder disability is medically consistent with the documented in-service motor vehicle accident and resulting complaints and reports of continued symptomatology, as specifically requested by the Board, and instead relied on lack of documented complaints or treatment between his initial documented injury and post-service complaints, citing a normal separation examination. Thus, for this reason, an addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board's February 2021 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Dalton v. Nicholson, 21 Vet. App. 23(2007) (holding that a VA examination was inadequate because the examiner relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). In this regard, the Board emphasizes that unlike his right ear hearing loss, the Veteran' diagnosed right shoulder disabilities are not eligible for service connection based on reported continuity of symptomatology. 38 C.F.R. § 3.309(a). The matters are REMANDED for the following action: Obtain an addendum opinion from an examiner other than the August 2015 and May 2021 VA examiners, preferably a physician, to address the etiology of the Veteran's right shoulder disability. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed right labral tear, including SLAP, (see August 2015 VA examination report) had its onset during service or is otherwise related to service. In addressing this question, the examiner must discuss: (a) the Veteran's STRs which document his complaints of right shoulder pain following a motor vehicle accident and a mild contusion; and (b) the Veteran's lay statements, which you are to assume as true, that his right shoulder disability onset as a result of the in-service motor vehicle accident, which has continued to cause pain and limited range of motion since that time. See November 1972 STR, January 2016 VA Form 21-4138, and August 2020 Board Hearing Transcript at 13-15. (c) Please state whether a nexus between the Veteran's right shoulder labral tear, including SLAP, and service is "medically consistent" with the documented in-service motor vehicle accident and resulting complaints of right shoulder pain and noted mild contusion and the Veteran's reports of continued symptomatology post-service in sub-part (b) above. Otherwise, the opinion will be returned as inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion without speculation, please indicate whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.