Citation Nr: 21007417 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-04 584 DATE: February 9, 2021 ORDER Service connection for a migraine disability is granted. Service connection for a bilateral hearing loss disability is denied. REMANDED Service connection for a low back disability is remanded. Service connection for bilateral carpal tunnel syndrome (CTS) is remanded. Service connection for diabetes mellitus, type 2 (diabetes) is remanded. Service connection for hypertension is remanded. Service connection for breast cancer is remanded. A total disability rating based on individual unemployability as the result of service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s migraine disability is etiologically related to a service connected disability. 2. A diagnosis of bilateral sensorineural hearing loss for VA purposes has not been established at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a migraine disability have been met. 38 U.S.C. § 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.310. 2. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army (Army) from July 1982 to September 1985, at which time she was honorably discharged as the result of hardship related to parenthood. The Veteran had additional service with the Army National Guard and Reserve. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of a VA Regional Office (RO). The appellant participated in a hearing before the Board in January 2020, and a transcript of this hearing has been associated with the record. This matter was previously before the Board in March 2020, when it remanded the Veteran’s claims in order to provide the Veteran with additional examinations addressing her claimed disability. The Board finds that there has been substantial compliance with the terms of its March 2020 remand directives, and it will proceed to a decision. In March 2020, the Board additionally remanded claims for service connection for an acquired psychiatric disability, a sleep disability, a vision disability, and entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound status. In September 2020, the Agency of Original Jurisdiction (AOJ) granted service connection posttraumatic stress disorder with a sleep disability and a vision disability and SMC. No further consideration of the Veteran’s claims is necessary because the AOJ’s September 2020 rating decision granted the Veteran’s claims in full, and the Veteran has not disagreed with the effective date for the award of SMC. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Pain alone may constitute a disability if it results in a functional impairment of earning capacity. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183 (1993). To establish service connection for a claimed disability on a secondary basis, there must be evidence of a current disability, a service connected disability, and medical evidence of a nexus between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Service Connection for a Migraine Disability The Veteran claims that she has a migraine disability that relates to her service connected posttraumatic stress disorder (PTSD) and visual disability. The Veteran has been diagnosed with ocular migraines (September 2013) and migraines (April 2018). In September 2020, an examiner stated that the Veteran’s headaches related to her visual disability. The Board, affording the Veteran with the benefit of the doubt, finds that the weight of the evidence supports a finding that the Veteran’s headache disability is related to her service-connected visual disability. The Board acknowledges that the September 2020 VA examiner opined that the Veteran did not, in fact, have a migraine disability. With that said, while the examiner acknowledged that the Veteran indeed experienced migraine pain, the examiner did not address why such pain itself did not constitute a disability. The Board therefore places relatively little probative weight on the opinion of the September 2020 examiner that the Veteran did not have a migraine disability, and it grants service connection for a migraine disability secondary to the Veteran’s service-connected visual disability. Service Connection for a Bilateral Hearing Loss Disability Impaired hearing is a disability when: (a) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or (b) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater, or (c) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Turning to the facts in this case, the Veteran has stated that she was exposed to loud noises in service, including while engaging in training at a firing range. In December 2013, a clinician noted broadly that the Veteran was “hearing impaired”. The Veteran underwent a VA examination in April 2020, at which time audiological testing showed that the Veteran’s hearing was normal in both ears. The post-service audiometric examinations of record do not show hearing loss as defined by VA regulations at any time during the appeal period. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The only available pure tone measurements of the Veteran’s hearing acuity from 2020 do not satisfy any of the three alternate bases for establishing hearing loss disability under 38 C.F.R. § 3. 385. To the extent that the Veteran believes that she experiences symptoms of impaired hearing, the Veteran is competent to testify as to a readily observable symptom such as diminished hearing. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). With that said, service connection for a bilateral hearing loss disability requires a quantitative level of hearing loss that the Veteran has not shown at any time since filing her appeal. The Board, therefore, finds that the weight of the evidence does not establish the presence of a bilateral hearing loss disability. The criteria for service connection for a bilateral hearing loss disability have not been met, and the claim is denied. REASONS FOR REMAND Service Connection for a Low Back Disability The Veteran reports that she injured her low back after she fell during an in-service run. Service treatment records show that she received treatment for a muscle strain following a March 1983 fall, and she complained of low back pain in December 1983 after lifting a jeep trailer. She states she has experienced lower back pain since that time. Upon review of these facts, in March 2020, the Board remanded the Veteran’s claim in order to provide her with an examination to assess the nature and etiology of her claimed low back disability. The Board’s remand directives instructed the examiner to consider that pain alone could constitute a disability if such pain resulted in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). The Veteran underwent an examination in July 2020, at which time the Veteran complained of pain that worsened throughout the day and resulted in a functional impairment in the form of an inability to lift over 10 pounds. Despite the Veteran’s complaints of low back pain and functional impairment, the examiner stated that the Veteran did not have a back disability, in part because the Veteran showed “multiple instances of symptom amplification” during the examination. The examination report does not identify the symptoms that the examiner believed the Veteran to be amplifying, nor does it identify why the examiner so believed. Additionally, the examiner did not explain why the Veteran did not have a current back disability despite having low back pain that resulted in a functional impairment. Accordingly, the Veteran should be afforded with an additional examination addressing the nature and etiology of her claimed low back disability. Service Connection for Bilateral CTS The Veteran, for example during her January 2020 hearing, stated that she began experiencing symptoms of CTS during service as a result of engaging in activities such as typing and transcribing for long periods of time. The Veteran stated that she has experienced wrist pain since that time. Upon review of these facts, in March 2020, the Board remanded the Veteran’s claim in order to provide her with an examination to assess the nature and etiology of her claimed bilateral CTS. The Board’s remand directives instructed the examiner to consider that pain alone could constitute a disability if such pain resulted in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). The Veteran underwent an examination in July 2020, at which time she complained of symptoms such as numbness in the fingers and elbows. Despite these complaints, the examiner stated that the Veteran did not have a bilateral CTS disability, in part because the “there are contradictory signs and symptoms to the diagnosis”. The examination report does not, however, identify these contradictory signs or symptoms or discuss why they are inconsistent with a diagnosis of CTS. Furthermore, the examiner did not explain why the Veteran did not have a current disability despite noting that the Veteran indeed had moderate numbness of the right upper extremity. Accordingly, the Veteran should be afforded with an additional examination addressing the nature and etiology of her claimed bilateral CTS. Service Connection for Diabetes, Hypertension, and Breast Cancer The Veteran claims that she has diabetes, hypertension, and breast cancer either as the direct result of her active duty service or as the secondary result of her acquired psychiatric disability. The Board remanded the Veteran’s claims as inextricably intertwined with the remanded claim for service connection for PTSD. A September 2020 rating decision granted service connection for an acquired psychiatric disability. The Veteran has not yet been provided with an examination addressing the connection, if any, between the Veteran’s claimed disabilities and her service connected PTSD. As such, the Veteran should be afforded with examinations addressing the nature and etiology of her diabetes, hypertension, and breast cancer. TDIU The Veteran contends that she is entitled to a TDIU based on her service connected disabilities. The Veteran has been in receipt of a combined 100 percent rating at all times relevant to this appeal. A 100 percent rating does not necessarily render the consideration of a TDIU moot, because the award of a TDIU may itself justify an award of SMC. See Bradley v. Peake, 22 Vet. App. 280 (2008).  In other words, a TDIU may be warranted in addition to a schedular 100 percent rating when the TDIU can be granted based on a disability other than the disability for which a 100 percent rating is in effect. Id. The claim for a TDIU must be remanded because it is inextricably intertwined with both the assignment of an initial rating for the Veteran’s service-connected migraine disability and the remanded claims for service connection. These matters are REMANDED for the following actions: Schedule the Veteran for VA examinations addressing the nature and etiology of her claimed low back disability, bilateral CTS, diabetes, hypertension, and breast cancer. After reviewing the Veteran’s electronic claims file and considering the Veteran’s contentions, the examiners should address the following questions: Low Back Disability (a.) State whether the Veteran has a current low back disability. The examiner must consider that back pain alone, if such pain results in a functional impairment, may itself qualify as a disability. (b.) If the Veteran has a low back disability (to include back pain alone, if such pain results in a functional impairment), then address, with a complete rationale, whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran’s low back disability arose during service or was otherwise caused by the Veteran’s military service, to include as a result of falling during an in-service run or lifting a jeep trailer. Bilateral CTS (a.) State whether the Veteran has current bilateral CTS disability. The examiner must consider that CTS pain alone, if such pain results in a functional impairment, may itself qualify as a disability. (b.) If the Veteran has bilateral CTS, then address, with a complete rationale, whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran’s bilateral CTS arose during service or was otherwise caused by the Veteran’s military service, to include as a result of engaging in activities such as typing for long periods of time.   Diabetes (a.) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran’s diabetes arose during service or was otherwise caused by the Veteran’s military service. (b.) Is it at least as likely as not (that is, a 50 percent probability or greater), that the Veteran’s diabetes was caused by a service connected disability, to include PTSD? (c.) Is it at least as likely as not (that is, a 50 percent probability or greater), that the Veteran’s diabetes underwent any incremental increase in disability, regardless of its permanence, due to a service connected disability, to include PTSD?   An “incremental increase in disability” is an additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Hypertension (a.) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran’s hypertension arose during service or was otherwise caused by the Veteran’s military service. (b.) Is it at least as likely as not (that is, a 50 percent probability or greater), that the Veteran’s hypertension was caused by a service connected disability, to include PTSD? (c.) Is it at least as likely as not (that is, a 50 percent probability or greater), that the Veteran’s hypertension underwent any incremental increase in disability, regardless of its permanence, due to a service connected disability, to include PTSD?   An “incremental increase in disability” is an additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Breast Cancer (a.) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran’s breast cancer arose during service or was otherwise caused by the Veteran’s military service. (b.) Is it at least as likely as not (that is, a 50 percent probability or greater), that the Veteran’s breast cancer was caused by a service connected disability, to include PTSD? (c.) Is it at least as likely as not (that is, a 50 percent probability or greater), that the Veteran’s breast cancer underwent any incremental increase in disability, regardless of its permanence, due to a service connected disability, to include PTSD?   An “incremental increase in disability” is an additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.