Citation Nr: 21071475 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-25 053 DATE: November 30, 2021 REMANDED Entitlement to service connection for a left knee disability as secondary to the service-connected right knee disability is remanded. Entitlement to service connection for bilateral hearing loss disability is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for dizziness, to include as secondary to the service-connected migraine headaches, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1974 to April 1976. In June 2021, the Board remanded the above issues for further development, to include requesting adequate medical opinions, which were obtained in July 2021. In an October 2021 rating decision, the RO granted service connection for right and left shoulder disabilities. This is considered a full grant of the benefits sought on appeal and these issues are no longer in appellate status. The Board finds that substantial compliance with the June 2021 remand directives was not accomplished because the July 2021 examiner did not adequately respond to questions posed by the Board. Left Knee Disability The July 2021 addendum opinion, the examiner opined that the left knee condition antedated the diagnosis if right knee, and as such, was less likely than not proximately due to it. At the end of the report, the examiner simply noted "Left knee: not aggravated." This statement is conclusory and offers no rationale regarding the question of aggravation. Accordingly, an adequate opinion is necessary prior to analyzing the merits of this claim. Bilateral Hearing Loss In its most recent remand, the Board found that the October 2015 opinion was inadequate because the examiner failed to explain why the lack of hearing loss at separation was significant and did not identify any alternative reason for the Veteran developing hearing loss. At a July 2021 VA audiology examination, the Veteran's audiometric results did not establish that he has hearing loss for VA purposes. However, the examiner did not address the discrepancy between that finding and the 2015 audiometric results that showed hearing loss for VA purposes, bilaterally. Furthermore, the etiology opinion provided by the examiner is inadequate. While the examiner acknowledged that the Veteran was exposed to acoustic trauma during service, the examiner concluded that absent evidence of hearing loss in the service treatment records, it is unlikely that the Veteran's current hearing loss is related to service. Notably, the absence of evidence in the Veteran's service treatment records, alone, may not serve as the basis for a negative opinion as to direct service connection. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Further, 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). For these reasons, remand is needed to obtain adequate rationale. Additionally, the VA examiner refuted the medical plausibility of delayed onset hearing loss based heavily on an Institute of Medicine (IOM) study indicating that delayed onset hearing loss due to previous noise exposure is unlikely to occur. However, the VA examiner contemplated only the IOM report's negative findings. McCray v. Wilkie, 31 Vet. App. 243 (2019). For these reasons as well, the Board finds the 2021 VA audiology opinion inadequate to decide the claim. Asthma In the prior remand, the Board found that the presumption of soundness was not rebutted in this case despite later notations that the Veteran had childhood asthma. As such, the Board found that there must be clear and unmistakable evidence to rebut the presumption of soundness. The Board further found that the 2015 examiner's opinion that the asthma clearly and unmistakably preexisted service was inadequate because lay assertions by the Veteran were insufficient to rebut the presumption of soundness. The Board concluded that the fact remained that no defects were noted at the time of the Veteran's enlistment examination. The July 2021 examiner stated that the Veteran had asthma during childhood and until age 11. The examiner incorrectly added that the Veteran claimed he had "recurrence" of the asthma during service. The examiner failed to address the Board's question as to whether the treatment for asthma and the medical history suggests that there was clear and unmistakable evidence that the asthma preexisted service. Instead, the examiner simply stated the reported history in service and noted that other than the one treatment for asthma during service, there was no additional treatment. No rationale was provided. Accordingly, a new medical opinion is necessary prior to analyzing the merits of this claim. Sleep Apnea and Dizziness The 2021VA examiner opined that the sleep apnea is less likely than not related to service because there is no evidence of sleep apnea in service and it was diagnosed many years after service. The examiner also opined that the Veteran's dizziness is less likely than not related to service because it was due to vertigo and not the service-connected lumbar spine. On review, this opinion is inadequate. As noted by the Board, the service treatment records contain complaints of dizziness and difficulty sleeping, which this examiner did not acknowledge or address. The examiner also did not address the Veteran's competent lay assertions that his difficulty sleeping and dizziness continued ever since service. Additionally, although in the body of the remand the Board explained that an opinion was needed on a secondary basis due to the service-connected migraine headaches, in the remand directives, the Board mistakenly asked whether the dizziness and sleep apnea were secondary to the service-connected spine disability. An opinion as secondary to the service-connected migraine headaches should be requested. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the left knee disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: Is it at least as likely as not (a 50 percent or higher probability) that the service-connected right knee DJD aggravates the left knee disability? A complete rationale should be provided. Please note: the fact that the left knee disability predated the right knee disability is irrelevant to the issue of aggravation. 2. Schedule the Veteran for another VA audiology examination. Any necessary tests or studies must be conducted, and all clinical findings should be reported in detail. 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. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Clarify whether the Veteran has a current diagnosis of hearing loss for VA purposes? If not, please address the October 2015 VA audiometric results showing bilateral hearing loss disability and explain why it no longer exists. Indicate whether the October 2015 audiometric results should be considered valid or not. (b) For any current right and/or left ear hearing loss disability, provide an opinion as to whether it at least as likely as not (a 50 percent or higher probability) had its onset during service, manifested within one year after service separation, or is otherwise etiologically related to service, specifically to include conceded in-service acoustic trauma. **If the examiner concludes that the Veteran's hearing loss is likely related to post-service noise exposure, he/she must clearly explain why more weight is assigned to post-service noise exposure than the conceded in-service acoustic trauma. A complete rationale should be provided. 3. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the Veteran's asthma. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: (a) Provide an opinion as to whether there is clear and unmistakable evidence that the Veteran's asthma preexisted his active military service. The examiner is advised that the Veteran's lay statements alone, including those in the service treatment records, are insufficient to rebut the presumption of soundness. (b) If the answer to (a) is yes, provide an opinion as to whether there is also clear and unmistakable evidence that the pre-existing asthma was NOT aggravated during or by his service. (c) If the answers to (a) and (b) are no, provide an opinion as to whether the Veteran's asthma at least as likely as not (a 50 percent or higher probability) had its onset in service or is otherwise related to it. A complete rationale should be provided for all opinions. 4. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the Veteran's sleep apnea. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: (a) Is it at least as likely as not (a 50 percent probability or higher) that the diagnosed sleep apnea had its onset during service or is otherwise related to it? Address complaints of difficulty sleeping during service and the Veteran's lay assertions. (b) Is it at least as likely as not (a 50 percent probability or higher) that the diagnosed sleep apnea was caused OR aggravated by the service-connected migraine headaches? A complete rationale should be provided for all opinions on direct, causation, AND aggravation. 5. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the claimed dizziness. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: (a) Does the Veteran have a diagnosis manifested by dizziness? (b) Is it at least as likely as not (a 50 percent probability or higher) that any diagnosed disability manifested by dizziness had its onset during service or is otherwise related to it? In doing so, address complaints of dizziness during service and the Veteran's lay assertions. (c) Is it at least as likely as not (a 50 percent probability or higher) that any diagnosed disability manifested by dizziness was caused OR aggravated by the service-connected migraine headaches? A complete rationale should be provided for all opinions on direct, causation, AND aggravation. In providing the opinion, address whether there is a process such as Meniere's syndrome that accounts for a cluster of symptoms, to include hearing loss and the service-connected tinnitus. 6. Thereafter, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.