Citation Nr: 21076252 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 18-37 081 DATE: December 23, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for headaches, claimed as migraines is remanded. Entitlement to service connection for respiratory condition, including sinusitis or rhinitis is remanded. FINDING OF FACT The Veteran's currently diagnosed bilateral sensorineural hearing loss was incurred during active-duty service. CONCLUSION OF LAW The criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Navy on active duty from September 1973 to September 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The Veteran provided testimony at a hearing before the undersigned Veteran's Law Judge in December 2021. A hearing transcript has not yet been associated with the file, but will be at a later date. As the Board's determination is completely favorable to the Veteran, the Board finds no prejudice in now analyzing the merits of the claim. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that his bilateral hearing loss was caused by noise exposure while in service. The Veteran has been diagnosed with bilateral sensorineural hearing loss, satisfying the requirement of a current disability. The Veteran testified that while on active duty, he was a machinist's mate in the engine room, a very noisy environment in a confined space. He stated that he used hearing protection infrequently. Military personnel records show that the Veteran's military occupational specialty was Marine Mechanics. Based on the Veteran's testimony, military personnel records, and the September 2016 grant of service connection for tinnitus due to in-service noise exposure, the Board finds in-service acoustic trauma. The remaining question is whether the in-service noise exposure at least as likely as not caused the Veteran's bilateral hearing loss. Service treatment records show that the Veteran sought treatment on numerous occasions for ear pain with loss of hearing in the summer of 1974. In addition, audiograms conducted at entrance and separation show shifts in the Veteran's hearing. The Veteran testified that when he returned home after service, he noticed a difference in his hearing. Post-service VA treatment records show that the Veteran reported a progressive worsening of his hearing, especially in his left ear. While the Veteran is not competent to diagnose his hearing loss, or attribute it to a specific cause, he is competent to report the nature and onset of functional loss he experienced. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Turning to the nexus element, there is one medical opinion of record. At an August 2016 VA examination, the VA examiner based her negative nexus opinion on the entrance and exit examinations, which she characterized as showing normal hearing bilaterally, and threshold shifts that did not meet OSHA definitions. The examiner did not address the Veteran's description of the onset and progression of his hearing loss. The Board gives this opinion minimal probative weight, as the examiner did not address the service treatment records showing in-service complaints of hearing loss, Veteran's April 2016 statements regarding the onset and progression of his hearing loss, or the apparent inconsistency between her conclusion that the Veteran's in-service noise exposure was the cause of his tinnitus, but not hearing loss. Overall, the Board is persuaded by the service treatment records showing in-service complaints of hearing loss, the military personnel records showing the Veteran was a Machinist's Mate, and the Veteran's description of functional hearing loss when he returned home from service. The Veteran is competent to report when he began to notice difficulty hearing, and the Board notes that he has been granted service connection for tinnitus, which he reported began many years prior to the VA examination. A preponderance of the evidence supports his claim. Therefore, service connection for bilateral hearing loss is warranted. REASONS FOR REMAND 38 C.F.R. § 3.159(c)(4) requires VA to provide medical examinations or obtain medical opinions when there is competent evidence of a disability; evidence the Veteran suffered and in-service event, disease, or injury; evidence indicating that the claimed disability may be associated with the in-service event, disease or injury and insufficient competent medical evidence to decide the claim. Once VA undertakes to provide an examination, VA must provide an adequate examination and opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). A remand is required to provide adequate examinations and opinions. Respiratory Condition At the November 2016 VA examination, the examiner concluded that the Veteran did not have any diagnosed respiratory or sinus disabilities. She opined that the Veteran had no diagnosed upper respiratory disorders, and no respiratory symptoms that could be attributed to asbestos exposure. However, in the same examination, she noted that the Veteran's respiratory condition required the use of steroids, fluticasone and over the counter medications. Moreover, in the summary of evidence, she noted that medical imaging from 2016 had shown abnormalities, albeit minimal, in the Veteran's sinuses. The examiner also incorrectly stated that the Veteran's service treatment records did not show treatment for sinus complaints. The Veteran testified that in and since service, he has had a consistently runny nose and nasal congestion. The Veteran has variously described his upper respiratory symptoms as allergies, sinus problems, and nasal congestion. He has hypothesized that these symptoms were caused by asbestos exposure, though he also discussed the heat, steam, and other substances encountered in service. While the Veteran is competent to report the frequency, onset, and nature of his upper respiratory symptoms, he is not competent to identify the cause of these symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, service treatment records show that one at least three occasions, the Veteran sought treatment for sinus-related complaints. The multiple inconsistent findings and inaccurate factual premises require remand for a new examination and opinion. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) Headaches At the December 2021 hearing, the Veteran testified that while he was in service, he suffered frequent headaches. He described that the heat and noise of the engine room made the pain from these headaches worse. These frequent headaches with light and sound sensitivity continued to progressively worsen after service. Although the Veteran mentioned these headaches to his doctor, he preferred to avoid medication and treated them with over-the-counter medications and rest. The Veteran was diagnosed with migraine headaches in May 2016. Service treatment records show that on at least one occasion, the Veteran complained of headaches, which he attributed to sinusitis. At the August 2016 VA examination, the Veteran reported that he had frequent headaches in service, but did not seek treatment for them. The Board notes that the Veteran reports having had headaches prior to his entry into service. However, such were not noted on his entrance examination. When no preexisting medical condition is noted on examination for into service, a veteran is presumed to have been sound in every respect. 38 U.S.C. § 1132; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). When the presumption is applicable, the burden falls on VA to rebut with clear and unmistakable evidence both prongs of the presumption: that an injury or disease manifesting during service preexisted it and was not aggravated by it. Wagner, 370 F.3d at 1096. Additionally, the Veteran clarified that his pre-service headaches occurred as a teen, and were associated with hunger. Eating would relieve them. He has not had the same type of headache since joining the service. The August 2016 VA examiner concluded that the Veteran's headaches were less likely than not caused or aggravated by his military service. In support of her rationale, she explained that the Veteran had headaches prior to service and that there was "no reason" to think that headaches due to service would be getting worse decades later. This opinion and examination are inadequate, as the examiner failed to fully evaluate and consider the full range of Veteran's headache symptoms and possible causes therefore, such as stress and potential relation to sinus or other upper respiratory conditions. For these reasons, a new examination and opinion are warranted. The matters are REMANDED for the following action: 1. Associate updated VA records with the claims file. 2. Then, schedule the Veteran for a VA respiratory conditions examination with a new clinician; the claims folder must be reviewed in conjunction with the examination. The examiner must identify any current diagnosis or disability affecting the Veteran's upper respiratory system. For each identified condition, the examiner must opine as to whether such is at least as likely as not caused (50 percent probability or greater) or aggravated by service. The examiner must consider the entire claims file, including the Veteran's statements regarding the nature and onset of his upper respiratory symptoms. Exposure to asbestos, excessive heat, and other substances aboard ship should be addressed. A full and complete rationale for any opinion expressed is required. 3. Schedule the Veteran for a VA headaches examination with a new clinician; the claims folder must be reviewed in conjunction with the examination. The examiner must identify any current diagnosis or disability pertaining to the Veteran's headaches. For each identified condition, the examiner must opine as to whether such is at least as likely as not caused (50 percent probability or greater) or aggravated by service. The examiner must consider the entire claims file, including the Veteran's statements regarding the nature, frequency, duration, and onset of his headache symptoms, to include the excessive noise and heat of the engine room. The Veteran is to be presumed sound at entry, free of any chronic headache condition. A full and complete rationale for any opinion expressed is required. 4. After the above has been completed, readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case, and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.