Citation Nr: 21006687 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-31 379 DATE: February 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for facet arthritis with lumbar strain, DDD, anterior subluxation, herniated nucleus pulposis and scars (low back) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is related to in-service exposure to acoustic trauma. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to June 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. The Veteran testified before the undersigned Veterans Law Judge during an October 2019 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board in December 2019, wherein the Board remanded for additional development, to include scheduling the Veteran for VA examinations. The matter has returned to the Board for adjudication. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is a result of traumatic noise exposure from military service. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). The Veteran’s service treatment records (STRs) are silent for any complaints or treatment of hearing loss. However, the Veteran stated that his hearing loss is due to the environment he was working in, as a firefighter at the air base. He stated that they did not have enclosed cabs for the structural firefighting engines, and he had to ride on the back of the tailboard of the vehicle, which was attached with a harness. He was riding around on the flight line on jet aircrafts with the engines running at taxi speed or the jets were going ahead and taking off or landing. See October 2019 Board hearing transcript at pg. 4. Additionally, the Veteran stated that he worked in this kind of capacity for most of his four years of active duty service. He stated that he might have had temporary hearing loss after a particularly loud day. He also reported that his ego kept him from going to the ear doctor. See October 2019 Board hearing transcript at pg. 5. The Veteran acknowledged that the hearing loss has been a gradual process, and that while he might have had some hearing loss, it really kicked in about seven or eight years ago when he was really having difficulty. See October 2019 Board hearing transcript at pg. 7. Nevertheless, he later stated at the hearing that he was an airport firefighter for thirty years but was stricter on hearing protection. See October 2019 Board hearing transcript at pg. 8. Based on this information, the Board acknowledges that the Veteran was exposed to loud noise in service. The Veteran is competent to report the event that occurred during service, to include in-service noise exposure. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds that the Veteran’s assertions regarding his in-service noise exposure and the onset, nature, and progression of his hearing loss are considered competent and credible lay evidence of such exposure. Therefore, the second element of service connection has been established. The Veteran was afforded a VA examination in October 2013. He did not have hearing loss in the right ear for VA purposes, but did have hearing loss in his left ear. The VA examiner opined that the Veteran’s hearing loss was less likely (less than 50 percent probability) due to military noise exposure because his file documents hearing within normal limited bilaterally on a test dated from April 1991, which is twelve years past his exit from active duty which was in June 1978. It was noted at the examination that he was on the flight line for four years with no hearing protection. He also reported exposure to fire alarms in the station house at all hours of the night and day with no hearing protections. The Veteran reported pre and post military recreational noise exposure with use of hearing protection. Per the December 2019 Board remand instructions, the Veteran was afforded another VA examination in March 2020. While the Veteran did have bilateral hearing loss for VA purposes, the VA examiner opined that the Veteran’s hearing loss is less likely as not (less than 50/50 probability) caused by or a result of an event in military service. As rationale, the VA examiner stated that the Veteran described significant noise exposure during his time in the service and noted that he held a similar position as a civilian, with the difference being use of hearing protection. When evaluating objective evidence of acoustic trauma, changes in hearing or presence of hearing loss would be the best indicator. She noted that comparing enlistment and separation examinations from active duty show that no significant changes were noted in hearing between those dates or provide objective evidence of acoustic trauma. The VA examiner noted that currently, the gold standard for determination of acoustic trauma is positive, permanent shift in auditory thresholds (Per the Journal of Neuroscience, Kujawa, and Liberman, 2009). She rationalized that because there is no evidence of acoustic trauma, she cannot assume there was acoustic trauma. She explained although the Veteran’s military occupational specialty of fire protection specialist has a high likelihood of exposure to hazardous noise, one cannot assume that exposure to any such hazardous noise will automatically result in acoustic trauma. Additionally, the VA examiner cited to the Institute of Medicine (IOM) 2005 report on noise and military service which stated that there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was “unlikely.” The VA examiner found that based on the objective evidence (audiograms), there is no evidence on which to conclude that the Veteran’s current hearing loss was caused by or a result of the Veteran’s military service, including noise exposure. The examiner concluded that as the IOM report continues to be the most comprehensive review regarding effects of noise exposure in veterans, and after review of information contained within the Veteran’s claim file, including lack of objective evidence of hearing loss on the right until 2013, and perception of hearing difficulties within the past ten years, it is the opinion of the examiner that it is less likely than not that current complaint of hearing loss is related to active duty noise exposure. The Board finds that the March 2020 VA examination is inadequate as the VA examiner conceded noise exposure from service, but she did not find evidence of acoustic trauma from his service. However, as previously noted, the Veteran had stated that he was exposed to loud noise on the flight line during his four years in military service without hearing protection. While the examiner also stated that he had perception of hearing difficulties within the past ten years, the Veteran had explained at the October 2019 Board hearing that he did notice hearing loss since service, and that it had been more of a gradual process. Furthermore, the absence of documented hearing loss while in service is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The United States Court of Appeals for Veterans Claims (Court), in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303 (d). After following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Based on his reports, a continuity of symptomatology of chronic hearing loss has been established sufficient to satisfy the remaining element of service connection. Therefore, the Veteran's claim for service connection for bilateral hearing loss is granted. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for a low back condition The Veteran contends that his low back condition is a result of his duties in service as a firefighter and an event in service when he fell off a foam trailer. The December 2019 Board decision remanded the issue so that the RO could verify his periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) and obtain Air Force National Guard treatment records. The Board decision also remanded the issue for a VA examination for his low back as it found that the previous examination from October 2013 was inadequate. The Veteran was examined by the VA in March 2020. The VA examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness as the only notation of back injury in the STRs refers to muscle spasms in the trapezius area which is the upper back, not the lumbar region in which he has issues now. The examiner also opined that the condition is otherwise not related to service, to include his duties related to a firefighter such as hauling hoses and five-gallon drums and moving around fifty-five-gallon drums of protein foam as there are no complaints of back problems noted secondary to lifting or moving hoses or drums. He also opined that the condition was not caused or aggravated due to a disease or injury during a period of ACDUTRA or INACDUTRA service as the Veteran served as a civilian firefighter but then did “weekend warrior” duties as a medical supply technician. Private medical providers note that he was at the fire department when he injured his back so this would have been in a civilian status. The examiner was also asked to address whether it is at least as likely as not that the in-service injury where the Veteran fell off a five-thousand-gallon foam trailer would subsequently result in his current low back disability. To this end, the VA examiner found that since this injury that was not documented may have occurred in 1976 and there are examination reports from 1996 and other times since that time frame that indicated no back complaints, it is less likely than not that current issues were triggered by an undisclosed accident in 1976. For a medical opinion to be adequate, it must be based upon sufficient facts or data, the product of reliable principles and methods, and the result of principles and methods reliably applied to the facts. Nieves-Rodriguez v. Peake, 22 Vet. App 295, 302 (2008). Moreover, the Board notes that the Veteran is competent to attest to the event in service that occurred in 1976 and finds his statements pertaining to his military occupational specialty (MOS) to be credible. See Layno, 6 Vet. App. 465 (1994). Here, the March 2020 VA examination is inadequate as the examiner did not fully consider all the Veteran’s lay statements and assertions. The VA examiner also relied on the absence of medical evidence during service and lack of treatment following service to provide a negative nexus opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate when the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). Additionally, the RO has not complied with the Board’s prior remand instructions. There has been no attempt to verify the periods of ACDUTRA and INACDUTRA and there has not been attempts to obtain his Air Force National Guard treatment records. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. The matters are REMANDED for the following action: 1. Obtain VA treatment records from April 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. Verify the Veteran’s periods of ACDUTRA and INACDUTRA during the Veteran’s National Guard service and undertake actions to obtain all associated Air Force National Guard treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Once the above has been completed, the RO should return the file to the March 2020 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner, who is a physician. Whether an in-person examination is required is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Notwithstanding the absence of records of immediate treatment for a low back disability in service, is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a low back condition that: a) had an onset in service; b) is otherwise related to service; to include his duties related to a firefighter such as hauling hoses and five-gallon drums and moving around fifty-five-gallon drums of protein foam; or c) was caused or aggravated due to a disease or injury during a period of ACDUTRA or INACDUTRA service in the National Guard? d) Also, the examiner should address whether it is at least as likely as not that the in-service injury where the Veteran fell off a five-thousand-gallon foam trailer would subsequently result in his current low back disability. The examiner should obtain additional details about this accident from the Veteran if necessary. e) Additionally, if arthritis is diagnosed, the examiner should also opine whether it is at least as likely as not (50 percent probability or greater) arthritis of the low back was manifest to at least a compensable degree within one year of his discharge from active duty. If so, the examiner should comment on the nature of those manifestations. The examiner must consider the Veteran's competent lay evidence that he has had back trouble ever since service and his competent reports of the fall in service and duties related to his MOS of firefighter. The examiner should also consider the post-service incidents of back pain and the Veteran’s surgery in November 2010. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.