Citation Nr: 21072089 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-49 810 DATE: December 2, 2021 ORDER Service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral ankle tendinitis is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with anxiety disorder and unspecified depressive disorder, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is etiologically related to acoustic trauma sustained in active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1978 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019 this case was before the Board and the issue was remanded to the agency of original jurisdiction (AOJ) for additional development. New VA examinations and addendums were ordered for the claimed disabilities. In addition, records from the Social Security Administration (SSA) were to be requested. The bilateral ankle disability addendum was required to discuss the Veteran's lay statements regarding the pain beginning during service. Unfortunately, as discussed in greater detail below, the development conducted does not adequately comply with the directives of the August 2018 remand. Compliance with remand directives is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). This case has now been returned to the Board for further appellate action. Service Connection - Bilateral Hearing Loss To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or an injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability also may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disability or if it is aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Diseases of the nervous system, including sensorineural hearing loss and tinnitus, are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 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. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. Here, the Veteran contends that he sustained bilateral hearing loss while in active service. In his initial claim the Veteran indicated that he spent time at the firing range, as an M60 gunner, and a driver of an M113 vehicle. He claims to have never been given or mandated to wear proper ear protection during this time. He indicates frequent trips to the live fire range. The Veteran is service-connected for tinnitus. The Veteran's service treatment records (STRs) do not show that the Veteran had bilateral hearing loss disability for VA purposes at any time during his active service. It should be noted that the Veteran did not desire a separation examination so no baseline for the end of his time in service is of record. During a VA examination in June 2016, the Veteran indicated that the tinnitus began first with the hearing loss occurring approximately 10-15 years later. The Board finds the Veteran credible in that regard. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Veteran did not seek treatment until 2015. Following his initial treatment, he was provided hearing aids in January 2016. The Veteran was afforded a VA examination in November 2019 in which he was found to have bilateral sensorineural hearing loss for VA rating purposes: HERTZ 500 1000 2000 3000 4000 RIGHT 65 65 65 65 65 LEFT 60 65 65 70 70 The Veteran's speech recognition score using the Maryland CNC Test was 44 percent in the right ear and 28 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. The examiner indicated that following his time in service, the Veteran worked as a project manager doing office work and then as a truck driver. The examiner indicated there was no noise exposure post-military. The examiner also described the Veteran's in-service role as a M113 driver as work involving a loud enclosed vehicle. The Veteran's MOS as an infantryman was noted as having a high probability of hazardous noise exposure. Despite this the examiner found it less likely than not that the Veteran's hearing loss began in or was related to service. The only rationale provided was that there was no documentation of decreased hearing sensitivity within a reasonable timeframe after discharge. The Board finds the November 2019 is inadequate for adjudication purposes. In this regard, the Board notes that the VA examiner failed to consider the lack of noise exposure in the Veteran's life following his time in-service as well as the Veteran's lay statements of his numerous exposures to hazardous noise while in service. As the opinion is not adequate, it cannot be used to support a denial of entitlement to service connection. The Veteran noted in his bilateral ankle VA examination from November 2019 that he did not see any physicians from the time he left service until 2015. This matches with his first documented complaints occurring in 2015 as noted above. Competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify reduced hearing acuity and report on the chronicity of symptomatology since active service. Moreover, his statements have been found credible. Accordingly, the Board finds that the evidence for and against the claim is in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection - Bilateral Ankle Tendinitis The Veteran contends that he injured his ankles while on numerous 100 plus mile road marches. The Veteran indicates that he was in great pain during these marches due to the boots that he received. He was treated for this issue immediately following the marches but has indicated that there have been problems with his ankles ever since. The Veteran's STRs do include complaints of left ankle pain in February 1980 as well as heel pain and achilles pain in March 1980. The initial VA examination from May 2016 found the bilateral ankle complaints to be less likely than not related to the Veteran's time in service. The examiner reviewed the Veteran's STRs and concluded that the Veteran suffered an acute event in service but that it did not progress into a chronic condition. The Board remanded this issue in April 2019 and sought an addendum opinion. The Board found that the May 2016 examiner did not discuss the Veteran's lay statements regarding his ankle pain beginning in service and continuing to the present day. The Veteran's SSA benefits were also to be requested. These SSA records were received in May 2019. The Veteran was afforded a new VA examination in October 2019. This examiner again found a negative nexus. However, this examiner again failed to properly discuss the Veteran's lay statements as to his pain beginning in service and continuing to the present day. The only rationale provided by the examiner was that no chronic condition was found in the Veteran's STRs. This is similar in nature to the May 2016 rationale that the Board already found to be inadequate. As such, the Board finds that the examiner failed to properly address the directive from the prior remand. Compliance with remand directives is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection - Psychiatric Disorder The Veteran contends that his PTSD was caused by an incident in service in which he was told by another service member to stop a third service member who was leaving his barracks as this service member was alleged to have stolen. The Veteran indicated that he did stop the fellow service member and was engaged in a fight for multiple minutes, which caused great harm to the alleged thief. The story has changed a bit over time with the Veteran stating in his December 2015 statement in support of claim that no one but a fellow service member witnessed this fight, but later on in an April 2016 statement in support of his claim for PTSD the Veteran contends another service member told him to stop the alleged thief. In this same statement from April 2016 the Veteran states he was buzzed from the beers he had earlier. The Veteran also contends that he became a confidential informant (CI) regarding drug sales within various units and that this has contributed to his PTSD. In July 2016 the JSRRC Coordinator submitted their findings that none of the Veteran's alleged stressors could be corroborated. The Veteran's post-service medical treatment records do show an extensive history of psychiatric treatment for both mental health problems as well as substance abuse issues. Additionally, the Veteran's military personnel record includes multiple disciplinary actions, including a January 1979 incident in which he struck a fellow service member. The write-up of this incident includes language indicating that the Veteran may have been high from smoking at the time. There are also numerous lay statements from people that knew the Veteran prior to his time in service that all indicate that his demeanor changed following his time in service. The Veteran submitted a private evaluation from July 2018 that found that the Veteran's mental health problems began during active service. However, in the April 2019 Board remand, this report was found to be inadequate for adjudicative purposes. This decision found that the opinion was based on an inaccurate factual background as there is no evidence supporting the Veteran's claims of being a CI or that he stopped a theft by attacking his fellow service member. Following this remand, the Veteran was afforded a new VA examination in October 2019. The examiner diagnosed the Veteran was both PTSD as well as Major Depressive Disorder (MDD). The stressor found was the incident involving stopping the alleged thief. The examiner notes that there is no documentation of the stressor; nevertheless, the examiner found a positive nexus for the Veteran's PTSD by noting that he gave the benefit of the doubt to the Veteran. The Board notes that this supposition by the examiner falls into the same trap as the July 2018 private opinion. There is no evidence in the file to corroborate the Veteran's claims that he attacked his fellow service member to stop a theft. In fact, the contemporaneous documentation from that time indicates that Veteran merely started a fight and was alleged to have been high due to smoking at the time of the incident. A veteran may not obtain service connection for an illness if that disability was the result of the Veteran's own willful misconduct to include the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). The October 2019 VA examiner did not, however, opine on the issue of direct service connection for the Veteran's MDD. The examiner was able to separate different symptoms between the two diseases while writing the October 2019 report. Therefore, the Board finds that an addendum opinion is needed to determine whether the Veteran's MDD is related to his time in service. The matters are REMANDED for the following action: 1. Return the claims file to the October 2019 VA examiner (or another suitably qualified clinician) for an addendum opinion regarding the Veteran's claimed bilateral ankle tendinitis. Based on a thorough review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's bilateral ankle tendinitis had its onset during the Veteran's active service or is otherwise etiologically related to such service. The Board emphasizes that even if the examiner finds no bilateral ankle tendinitis, the examiner should opine regarding the etiology of the previous diagnosis of record. The examiner should discuss the various complaints of ankle, achilles, and foot pain noted in the Veteran's service treatment records and if they could be related to any current bilateral ankle disability. The examiner should also discuss the continuity of symptomatology of continued bilateral ankle pain. A complete rationale for any opinion expressed should be included in the examination report. 2. Return the claims file to the October 2019 VA examiner (or another suitably qualified psychologist or psychiatrist) for an addendum opinion regarding the Veteran's diagnosed Major Depressive Disorder. Based on a thorough review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the diagnosed Major Depressive Disorder had its onset during the Veteran's active service or is otherwise etiologically related to such service. A complete rationale for any opinion expressed should be included in the examination report. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.