Citation Nr: 21075300 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-36 332 DATE: December 20, 2021 REMANDED 1. Entitlement to service connection for right lower extremity neurological impairment, to include as secondary to atrial fibrillation, is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity neurological impairment is remanded. 3. Entitlement to service connection for bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1951 to March 1955 and from February 1991 to July 1991. Unfortunately, the Veteran died in October 2020. The appellant, the Veteran's wife, has been substituted for the Veteran relating to all pending VA claims and appeals. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2016 and August 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The within issues were previously denied in an October 2018 Board decision. The Veteran appealed the denial of the issues to the United States Court of Appeals for Veterans Claims. In August 2020, the Court issued a Memorandum Decision vacating the October 2018 Board decision and remanded them for readjudication. At the Court, the appellant's representative argued that the Board erred in finding that VA had satisfied its duty to assist because VA failed to obtain records from the Milwaukee VA Medical Center pertaining to the period before his January 28, 2015 angioplasty, from which the Veteran alleged that his right lower extremity neuropathy originated. For background purposes, in May 2017, VA sent a letter to the Milwaukee VA Medical Center requesting all records related to the Veteran's medical care from "January 28, 2015, to August 12, 2015." The letter specifically stated that the Veteran had alleged that he sustained an injury to his right lower extremity on January 28, 2015. However, the Veteran had consistently stated that his right leg condition developed as a result of his January 20, 2015, angioplasty. Although the record includes copies of some records from the Veteran's January 20, 2015 operation and subsequent in-patient hospitalization, the Court stated that it is not clear whether all records from that treatment are of record, as VA did not seek these records. Although the Secretary argued that all relevant documents are of record and that the Veteran was not competent to assess the significance of any possible missing diagnostic imaging, the Court stated that the Board did not make those findings or even discuss whether all evidence had been obtained. Accordingly, the Court stated that remand of the Veteran's right lower extremity claim was warranted in order to perform additional development and satisfy VA's duty to assist. Additionally, the Court identified an inconsistency between two VA medical opinions relating to the Veteran's service-connection claim for bilateral hearing loss, which the Board relied on in its October 2018 denial. The Board notes that there was no audiogram testing performed on the Veteran during his first period of active duty from 1951 to 1955 to establish hearing loss during that period of active duty. The Veteran underwent a VA audiological examination in August 2016. The examiner acknowledged that the Veteran was exposed to noise in service, but noted that hearing loss was first shown on an audiology examination in February 1982. The examiner explained that in-service noise exposure did not necessarily mean the Veteran's current hearing loss was caused by the noise exposure in the first duty period because there is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. The examiner further indicated that although there were no definitive studies, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The examiner opined that, given the available studies without a separation audiogram from the active duty period, it could not be determined if the Veteran had hearing loss at the time of his separation that was related to the active duty noise exposure. The examiner concluded that it was not at least as likely as not (50 percent probability or greater) that the Veteran's hearing loss was caused by or a result of an event in military service. In a January 2017 addendum opinion, the VA audiologist stated that it was not possible to opine as to whether the Veteran's hearing loss was related to in-service noise exposure without objective evidence. The VA examiner stated that objective audiogram evidence of hearing loss during service is required to establish a nexus between the Veteran's current hearing loss and his in-service noise exposure. The Board relied on the examiner's conclusion in its October 2018 denial. However, in the August 2020 Memorandum Decision, the Court noted that the Veteran's hearing was not found to be normal during his first period of service. Instead, hearing tests were simply not performed. The Court stated that "the focus on the gap between [the Veteran's] first period of service and the onset of his symptoms seems misplaced," particularly when the Veteran had asserted that his hearing loss began before it was diagnosed on an audiogram, and the January 2017 private examiner stated that his hearing loss also likely began during service. The Court also noted that, in seeking the new VA medical opinion in January 2017, VA stated that only speculative opinions had been provided. However, in the January 2017 opinion, the examiner did not correct the speculative nature of his earlier opinion from August 2016 and stated that the prior opinions are unchanged. On remand, the Court stated that the Board should address this inconsistency and determine whether the medical opinion is adequate. In reviewing the evidence of record, the Board finds that this inconsistency warrants further development to obtain an adequate VA opinion relating to the Veteran's bilateral hearing loss. The above matters are REMANDED for the following action: 1. Request that the appellant identify any outstanding private medical records relevant to the service connection claim for right lower extremity neurological impairment, to include but not limited to all records pertaining to the Veteran's January 20, 2015 angioplasty. 2. Obtain any outstanding VA medical records relevant to the service connection claim for right lower extremity neurological impairment, to include but not limited to all records pertaining to the Veteran's January 20, 2015 angioplasty. 3. Refer the claims file to an appropriate clinician to provide an addendum opinion as to whether the Veteran's bilateral hearing loss is related to in-service noise exposure or is otherwise related to service. The examiner should review the file and be provided with a copy of the facts below. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran served on active duty from March 1951 to March 1955 and from February 1991 to July 1991. The Veteran passed away in October 2020. During the Veteran's lifetime, he was diagnosed with bilateral hearing loss disability, which he attributed to acoustic trauma during his first period of service from 1951 to 1955. The Veteran's DD Form 214 indicates that he worked as a sheet metal worker during this time in service. The Veteran's military occupational specialist (MOS) is consistent with noise exposure. Thus, in-service noise exposure during the Veteran's first period of active duty should be conceded. See VBMS entry with document type, "Certificate of Release or Discharge from Active Duty (e.g., DD 214, NOAA 56-16, NHS 1867), receipt date 08/13/2014, with "#1" in the subject field. The Veteran's service treatment records from his first period of active duty from 1951 to 1955 do not contain audiological test results from the Veteran's first period of active duty. On a July 1955 VA examination report, when addressing examination of the Veteran's ears, the examiner wrote "Normal limits." In an adjacent section labeled "Hearing," the examiner documented "15" before correction for both the right and left ears for conversational voice. No further explanation was provided. See VBMS entry with document type, "VA Examination," receipt date 07/14/1955, p. 2, items 33A & 33B. Following discharge from service in March 1955, the Veteran reported working as a fireman in Milwaukee for 29 years. A December 1962 Report of Medical Examination shows that clinical evaluation of the Veteran's ears was normal. Whispered and spoken voices were documented as being 15/15 for both ears. See VBMS entry with document type, "STR Medical," receipt date 01/16/1992, pp. 7-8 (items 22 & 70). A December 1962 Report of Medical History shows that the Veteran denied a history of ear trouble. See VBMS entry with document type "STR Medical," receipt date 01/16/1992, p. 11 (item 20, first column). A February 1964 Report of Medical Examination shows that clinical evaluation of the Veteran's ears was normal. Whispered and spoken voices were documented as being 15/15 for both ears. See VBMS entry with document type, "STR Medical," receipt date 01/16/1992, pp. 13-14 (items 22 & 70). A February 1964 Report of Medical History shows that the Veteran denied a history of ear trouble. See VBMS entry with document type "STR Medical," receipt date 01/16/1992, p. 15 (item 20, first column). A February 1965 Report of Medical Examination shows that clinical evaluation of the Veteran's ears was normal. Whispered and spoken voices were documented as being 15/15 for both ears. See VBMS entry with document type, "STR Medical," receipt date 01/16/1992, pp. 17-18 (items 22 & 70). A February 1965 Report of Medical History shows that the Veteran denied a history of ear trouble. See VBMS entry with document type "STR Medical," receipt date 01/16/1992, p. 19 (item 20, first column). An October 1967 Report of Medical Examination shows that clinical evaluation of the Veteran's ears was normal. Whispered and spoken voices were documented as being 15/15 for both ears. See VBMS entry with document type, "STR Medical," receipt date 01/16/1992, pp. 21-22 (items 22 & 70). An October 1967 Report of Medical History shows that the Veteran denied a history of hearing loss (hearing loss was not listed in the prior Reports of Medical History). See VBMS entry with document type "STR Medical," receipt date 01/16/1992, p. 23 (item 20, first column). A July 1968 Report of Medical Examination shows that clinical evaluation of the Veteran's ears was normal. Whispered and spoken voices were documented as being 15/15 for both ears. See VBMS entry with document type, "STR Medical," receipt date 01/16/1992, pp. 25-26 (items 22 & 70). A July 1968 Report of Medical History shows that the Veteran denied a history of hearing loss. See VBMS entry with document type "STR Medical," receipt date 01/16/1992, p. 27 (item 20, first column). A February 1969 Report of Medical Examination shows that clinical evaluation of the Veteran's ears was normal. Whispered and spoken voices were documented as being 15/15 for both ears. See VBMS entry with document type, "STR Medical," receipt date 01/16/1992, pp. 29-30 (items 22 & 70). A February 1969 Report of Medical History shows that the Veteran denied a history of hearing loss. See VBMS entry with document type "STR Medical," receipt date 01/16/1992, p. 35 (item 20, first column). A January 1971 Report of Medical History shows that the Veteran denied a history of hearing loss. See VBMS entry with document type "STR Medical Photocopy," receipt date 08/13/2014, with #1 in the subject field, p. 104. A February 1971 Report of Medical Examination shows that clinical evaluation of the Veteran's ears was normal. Whispered and spoken voices were documented as being 15/15 for both ears. See VBMS entry with document type, "STR Medical Photocopy," receipt date 08/13/2014, with #1 in the subject field, pp. 106-107 (items 22 & 70). A March 1972 Report of Medical Examination shows that clinical evaluation of the Veteran's ears was normal. Whispered and spoken voices were documented as being 15/15 for both ears. See VBMS entry with document type, "STR Medical Photocopy," receipt date 08/13/2014, with #1 in the subject field, pp. 102-103 (items 22 & 70). A March 1973 Report of Medical Examination shows that clinical evaluation of the Veteran's ears was normal. Whispered and spoken voices were documented as being 15/15 for both ears. See VBMS entry with document type, "STR Medical Photocopy," receipt date 08/13/2014, with #1 in the subject field, pp. 97-98 (items 22 & 70). Multiple Reports of Medical History show that the Veteran denied a history of hearing loss in March 1973, July 1974, October 1975, September 1976, June 1977, and February 1979. See VBMS entry with document type "STR Medical Photocopy," receipt date 08/13/2014, with "#1" in the subject field, pp. 79-99. A February 1982 Report of Medical Examination shows the Veteran was assessed with bilateral hearing loss from 3000 to 6000 dB on audiological examination. See VBMS entry with document type "STR Medical Photocopy," receipt date 08/13/2014, with "#1" in the subject field, p. 74 (item 71). A February 1987 audiogram report shows a notation that the Veteran had a history of high frequency hearing loss since 1982. See VBMS entry with document type "STR Medical Photocopy," receipt date 08/13/2014, with "#2" in the subject field, p. 12. In a February 1991 Report of Medical History, the Veteran again denied a history of hearing loss. See VBMS entry with document type "STR Medical Photocopy," receipt date 08/13/2014, with "#2" in the subject field, p. 2. A June 1991 service treatment record shows that recent hearing test results revealed a significant hearing loss or significant threshold shift for one or both ears determined by the results of monitoring. Testing performed later in the same month revealed "mild to moderately severe SNHL." See VBMS entry with document type "Medical Treatment Record Government Facility," receipt date 12/03/1991, with "#1" in the subject field, pp. 10-12. In an April 1992 statement from the appellant, the Veteran's wife, she wrote that the Veteran "has not had good hearing for about 10 y[ea]rs." See VBMS entry with document type "VA Form 21-4138 Statement in Support of Claim," receipt date 04/27/1992. In August 2016, the Veteran underwent a VA audiological examination. The examiner opined that it is not at least as likely as not (50% probability or greater) that the Veteran's hearing loss was caused by or a result of an event in military service. In his rationale, the examiner stated that there is insufficient evidence from longitudinal studies to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. The examiner stated that, without a separation audiogram from the Veteran's first active duty period, it cannot be determined if he had hearing loss upon separation at that time. Therefore, the examiner stated that it is not possible to opine as to whether the Veteran's hearing loss was likely related to service noise exposure without resorting to speculation. See VBMS entry with document type, "C&P Exam," receipt date 08/29/2016, with "DBQ AUDIO" in the subject field. In an addendum opinion from the August 2016 audiological examiner, submitted in September 2016, the examiner stated, "The [V]eteran's reserves audiograms were sporadic throughout his reserves time. There were no serial audiograms and especially there were no audiograms before and after any reserves duty noise exposure. To rule out any civilian noise injury to his hearing, audiograms before and after reserves duty noise would be required to show if there was a significant shift in hearing or not, which would be evidence of noise injury or not. While noise exposure in reserves is conceded, the permanent effects of the noise (if any) to the [V]eteran's hearing cannot be known without resorting to speculation for the above reasons. It both cannot be determined if his initial hearing loss was caused by reserves noise exposure and it also cannot be determined if any pre-existing hearing loss was aggravated beyond normal progression in reserves without resorting to speculation. See VBMS entry with document type "C&P Exam," receipt date 09/22/2016, with "Audio addendum" in the subject field. A private assessment from Dr. Steven J. Millen was submitted by the Veteran in January 2017. The Veteran reported to Dr. Millen that he first noticed hearing loss sometime in the 1980s, and that it had gradually worsened over time. The Veteran reported that while he was in Korea, he worked on an aircraft carrier and was exposed to loud noises, including gunfire. Dr. Millen conducted an audiometric evaluation that showed bilateral moderate sloping toward severe sensorineural hearing loss with speech discrimination of 76 percent on the right and 60 percent on the left. Dr. Millen assessed hearing loss due to noise exposure and presbycusis. He opined that given the Veteran's high-frequency hearing loss and the degree of noise that he was exposed to during the Korean conflict, within a reasonable degree of medical probability the Veteran's hearing loss in the high frequencies began during the Veteran's first period of active duty service. See VBMS entry with document type, "Medical Treatment Record-Non-Government Facility," receipt date 01/05/2017. Dr. Millen's assessment also documents the Veteran's 29 years of work as a fireman. The report states that this "exposed [the Veteran] to typical noise in the occupational fireman." The Center for Disease Control and Prevention (CDC) website states that "NIOSH recommends workplace noise levels are below 85 dBA (8-hour time-weighted average of 85 dBA based on a 3-dB exchange rate)." The CDC website further states that "Routine fire[]fighting tasks and emergency response activities often result in noise exposure that exceeds NIOSH recommendations." See https://www.cdc.gov/niosh/firefighters/health.html. Thus, the Veteran's occupation as a firefighter for 29 years exposed him to noise exposure that exceeds NIOSH recommendations. The August 2016 VA audiologist provided another addendum opinion in January 2017. The examiner stated that there is no new objective evidence from service and, therefore, his previous opinions were unchanged. Within his rationale, he wrote, "There is no new objective evidence from service available since the [V]eteran's VA C&P opinions were provided. There is still a lack of serial audiograms from service to provide objective hearing loss thresholds (see previous opinions). The rationale provided by Dr. Millen is that the [V]eteran was exposed to noise in service without hearing protection. However, being exposed to noise does not necessitate hearing loss. Objective evidence of hearing loss with a change in hearing in service is required to create a nexus between service noise exposure and hearing loss (see previous opinions for rationale). Dr. Millen's opinion includes speculation since there is no objective evidence or scientific citation used to provide the opinion. The VA audiologist noted that Dr. Millen also attributed the [V]eteran's hearing loss to presbycusis (age-related hearing loss). Dr. Millen has not been trained to complete C&P evaluations for the condition of hearing loss. Since there is no new objective evidence from service, the previous opinions provided 8/29/16 and 9/12/16 are unchanged." See VBMS entry with document type "C&P Exam," receipt date 02/13/2017, with "Audio addendum #2" in the subject field. In an October 2018 decision, the Board denied the Veteran's service-connection claim for hearing loss. See VBMS entry with document type, "BVA Decision," receipt date 10/16/2018, pp. 13-18. The Veteran appealed the Board's denial to a higher court. In an August 2020 Memorandum Decision, the United States Court of Appeals for Veterans Claims remanded the issue of service connection for hearing loss. The Court noted the Board's reliance on the assessment of the VA audiologist and stated, "However, [the Veteran's] hearing was not found to be normal during his first period of service. Instead, hearing tests were simply not performed. Thus, the focus on the gap between [the Veteran's] first period of service and the onset of his symptoms seems misplaced, particularly when [the Veteran] has asserted that his hearing loss began before it was diagnosed on an audiogram." See VBMS entry with document type, "CAVC Decision," receipt date 08/10/2020, pp. 89-93. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. Following a review of the claims file and the above facts, the examiner is asked to offer the following opinions: (i) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral hearing loss was incurred in or is otherwise related to in-service noise exposure that occurred while on active duty from March 1951 to March 1955? Please state upon what facts, medical principles, and/or medical literature the opinion is based. (ii) If the examiner finds it less likely than not that the Veteran's bilateral hearing loss disability was caused by in-service noise exposure, the examiner is asked to explain whether there is a medically sound basis to attribute the post-service bilateral hearing loss disability to in-service noise exposure, or whether they are more properly attributable to intercurrent causes. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.