Citation Nr: 21006080 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-02 282 DATE: February 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Application to reopen a claim of entitlement to service connection for a back disability is remanded. Application to reopen a claim of entitlement to service connection for sinusitis is remanded. Application to reopen a claim of entitlement to service connection for a gastrointestinal/stomach disorder is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to a rating in excess of 10 percent for lost right knee flexion is remanded. Entitlement to a rating in excess of 10 percent for lost right knee extension is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Bilateral hearing loss had its’ onset in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 101, 106, 1101, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.6, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from August 1978 to August 1982 and from November 1982 to November 1984. The Veteran also had a subsequent period of service with a Reserve Component. In June 2019, the Veteran testified at a personal hearing before the undersigned and a transcript of that hearing has been associated with the claims file. Initially, the Board of Veterans’ Appeal (Board) finds that notwithstanding the December 2020 letter in which the Board notified the Veteran that his appeal would be remanded unless he waived agency of original jurisdiction review of the evidence added to the claims file since the issuance of the statements of the case (SOCs) and supplemental statement of the case (SSOC), it can adjudicate the claim of service connection for bilateral hearing loss. The Board has reached this conclusion because the Veteran is not prejudiced by this adjudication because it is granting the claim. The Service Connection Claim The Veteran asserts, in substance, that service connection is warranted for his bilateral hearing loss because, like his already service connected tinnitus, it was caused by acoustic trauma while on active duty in the United States Navy because of his exposure to small arms fire (357-45-cal. pistols), diesel engines, boiler rooms, engine rooms, helicopters, hydraulics, and machinery and his problem has continued to the current time. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including sensor neural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted. 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The Court in Hensley also held that “audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Hensley, 5 Vet. App. at 157. The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board finds that the Veteran has a diagnosis of bilateral hearing loss as defined by VA. See, e.g., VA examination dated in July 2019. Next, the Veteran’s DD 214 shows he served in the United States Navy and lists his occupational specialty as refrigeration and air conditioning mechanic. Clearly, the Veteran was exposed to very loud noised during service. Likewise, the Veteran’s service personnel records show he had sea service. Moreover, the Veteran’s service treatment records contain July 1980 and January 1981 audiological examinations in which he had elevated auditory thresholds. Additionally, the Board finds the Veteran both competently and credibly reported being exposed to small arms fire at least while in basic training and was thereafter exposed to diesel engines, boiler rooms, engine rooms, helicopters, hydraulics, and machinery while serving at sea in the United States Navy as a refrigeration and air conditioning mechanic. See Davidson, supra. Given this record and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he had an injury (i.e., acoustic trauma) while on active duty. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Further, given the nature of the Veteran’s service it is reasonable for the Board to find that he had problems difficulty hearing during and since being exposed to small arms fire while in basic training and thereafter exposed to diesel engines, boiler rooms, engine rooms, helicopters, hydraulics, and machinery while at sea. See Davidson, supra; Owens, supra. However, the July 2019 VA examiner opined that the Veteran’s hearing loss was not due to his military service. In this regard, because symptoms of hearing loss in and since service are observable by a lay person, because the examiners did not appear to consider the Veteran’s competent and credible lay claims regarding in-service acoustic trauma due to his exposed to small arms fire at least while in basic training and thereafter being exposed to diesel engines, boiler rooms, engine rooms, helicopters, hydraulics, and machinery while serving at sea in the United States Navy as a refrigeration and air conditioning mechanic as well as the fact that VA granted the appellant service connection for tinnitus because of the same acoustic trauma, the Board finds that the Veteran’s claim of having observable symptoms of hearing loss in and since service is just as probative as the VA examiner’s opinion. See Davidson, supra; Owens, supra. Therefore, the Board finds that the evidence, both positive and negative, as to whether the Veteran had problems with bilateral hearing loss since service is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he did. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Accordingly, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS FOR REMAND All the remaining issues on appeal are remanded. As to all the remaining issues on appeal, the Board finds that a Remand is required because following the issuance of the most recent SOCs and the SSOC additional pertinent evidence was added to the claims file. See SOCs dated in November 2015, October 2017, and October 2018; SSOC dated in January 2019. To date, the Veteran has not replied to the Board’s December 2020 letter in which it gave him 45-days to waive agency of original jurisdiction (AOJ) of this evidence. Therefore, the Board finds that these issues must be remanded for the AOJ to review this evidence before the Board can issue its’ decision. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Also, as to all the remaining issues on appeal, the record shows that the Veteran had service with a Reserve Component. However, the record does not contain his dates of this service. Therefore, while the appeal is in remand status this information should be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). Lastly, as to all the remaining issues on appeal, the Board notes that the Veteran was afforded VA examinations in May 2018. However, legible copies of these examinations have not been associated with the claims file. Therefore, while the appeal is in remand status the reports from these VA examinations as well as any other outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The claim of service connection for vertigo is also remanded. As to the claim of service connection for vertigo, the Board notes that the Veteran was provided a VA examination in July 2016. However, the Board does not find the negative etiology opinion provided by that examiner adequate. The Board has reached this conclusion because the examiner did not provide a clear opinion, supported by rational, as to whether the benign paroxysmal positional vertigo diagnosed by that examiner was due to the Veteran’s military service to include the episodes of dizziness he was seen for while on active duty. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Likewise, the Board does not find the etiology opinion provided by that examiner adequate because the examiner did not provide an opinion as to whether the benign paroxysmal positional vertigo was secondary to his service connected tinnitus and/or his newly service connected bilateral hearing loss. See El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Therefore, the Board finds that a Remand is required to also obtain an adequate etiology opinion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this regard, when providing the secondary nexus opinion, the examiner should be award of the fact that the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) recently redefined aggravation to include temporary flare-ups. The claims for higher ratings for lost right knee flexion and extension are also remanded. Similarly, as to the claims for higher ratings for lost right knee flexion and extension the Board cannot ascertain from the existing record the knee’s range of motion during flare-ups as required by Sharp v. Shulkin, 29 Vet. App. 26 (2017) nor its range of motion in both active and passive motion, weight-bearing, and non-weight-bearing situations as required by Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the Board finds that a Remand is also required to provide the Veteran with a new VA examination to obtain these needed range of motion studies. See 38 U.S.C. § 5103A(d). These issues are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s dates of service with his Reserve Component. 2. Obtain and associate with the claims file legible copies of the May 2018 VA examinations. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA’s actions to obtain the records should be prepared and associated with the claims file and the Veteran and his representative should be notified in writing that the records cannot be found. 3. Obtain and associate with the claims file any outstanding VA treatment records. 4. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 5. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his vertigo. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that vertigo, including the benign paroxysmal positional vertigo diagnosed by the July 2016 VA examiner, is due to a disease or injury while on active duty or an injury while serving with a Reserve Component to include the episodes of dizziness he was seen for while on active duty. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s vertigo was caused by his service-connected tinnitus and/or bilateral hearing loss. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s vertigo was aggravated by his service-connected tinnitus and/or bilateral hearing loss. In providing answers to the above question the examiner should consider and discuss the service treatment records those that documented his treatment for dizziness. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology to include, his contention that he first had problem with dizziness while on active duty. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should also be aware of the facts that the Court held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his right knee lost flexion and extension. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: a. The examiner should identify all right knee pathology found to be present. b. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. c. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. d. The examiner should also state whether the examination is taking place during a period of flare-up. If it is, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If it is not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited right knee forward flexion and backward extension caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot provide the range of motion estimate during flare-ups for each of the required time periods without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). g. The examiner should also state the nature, extent, and severity of any right knee instability. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. (Continued on the next page)   If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Issue the Veteran and his representative a SSOC that, among other things, considers all the evidence added to the record since the issuance of the most recent SOCs and SSOC. See SOCs dated in November 2015, October 2017, and October 2018; SSOC dated in January 2019. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.