Citation Nr: 21009651 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-35 989A DATE: February 23, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to service connection for headaches is denied. REMANDED In addition, the following claims for entitlement to service connection are remanded for further development: right knee disability, left knee disability, and chronic joint pain, to include fibromyalgia. FINDINGS OF FACT 1. The probative evidence of record does not demonstrate that the Veteran has hearing loss that meets VA’s definition of a disability. 2. The probative evidence of record does not demonstrate that the Veteran has a diagnosis of a TBI. 3. The probative evidence of record does not demonstrate that the Veteran’s headaches are etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1989 to January 1993. In September 2019, the Veteran and his mother testified before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. In December 2019, the Board of Veterans’ Appeals (Board) reopened the Veteran’s claims and remanded them for additional development. This development has been completed and the claims have returned to the Board. Through a May 2020 rating decision, the AOJ granted service connection for PTSD and tinnitus, as well as entitlement to a total disability rating based upon unemployability (TDIU). While the AOJ did not address the Veteran’s claim for service connection for a sleep disability in either the rating decision or supplemental statement of the case (SSOC), the Veteran related his sleep issues to psychological distress and the AOJ included such symptoms in their assignment of an initial 70 percent rating. These represent a full grant of benefits and the claims are no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1159 (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, 1131, 5107; 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). As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss With regard to the first element of service connection, that of a current disability, VA has specific requirements regarding hearing loss. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, however, 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. 38 C.F.R. § 3.385. The Veteran has been afforded two VA examinations in connection with his claim. The first was in November 2012. At the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 0 30 LEFT 5 5 0 5 10 Speech audiometry using the Maryland CNC Test revealed speech recognition ability of 94 percent in both ears. The second was in February 2020. At the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 25 30 LEFT 20 20 20 25 25 Speech audiometry using the Maryland CNC Test revealed speech recognition ability of 100 percent in both ears. Using these scores, the Veteran does not meet any of the three definitions for a hearing loss disability under 38 C.F.R. § 3.385. While the Veteran may indeed experience a decreased ability to hear, it has not risen to the level of severity that qualifies as a disability for VA compensation purposes. In light of this, there is no disability and the threshold consideration for establishing service connection has not been met. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim for service connection is denied. 2. Entitlement to service connection for TBI The Veteran contends that he has a TBI that is related to in-service injuries, to include a motor vehicle accident in June 1992 and concussive explosions during service. The Veteran’s exposure to these events is recognized. The question now turns to whether the Veteran has a diagnosis of TBI. The Veteran attended a VA examination in November 2012, at which time it was found that he did not meet the diagnostic criteria for a diagnosis of TBI. Because treatment records dated after that exam noted TBI and post-concussive syndrome, the Board remanded the claim for additional examination to determine if he now meets the diagnostic criteria for a diagnosis. The Veteran attended a VA examination in February 2020. After an extensive review of the medical record, the examiner concluded that the Veteran did not have a TBI. The examiner explained that the Veteran did not report any symptoms related to a TBI or concussion during service, to include the accident, and he did not have any residuals for six months after the accident up until discharge in January 1993. Further, the examiner explained that the Veteran’s presentation and symptoms during the examination were often seen in individuals with severe mental health problems, and that this is the likely cause of his cognitive dysfunction. The Veteran is in receipt of a 70 percent rating for his PTSD which represents a significant impact on occupational and social functioning. The Board gives the VA examiner’s opinion great probative weight because it is based on a review of the pertinent records and the examiner has the medical expertise to make such a determination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the VA medical records which include notations of TBI or post-concussion syndrome. The Board does not find that these records to support a diagnosis of TBI or post-concussion syndrome for VA compensation purposes. First, the examiner in February 2020 had the opportunity to review the evidence in its totality and thus is in a position to render a more informed diagnosis or lack thereof. Second, the diagnoses in the treatment records appear to be, at least in part, based on the reporting of the Veteran, as opposed to medical diagnostic testing. Third, while the Veteran reported head injuries during service, he also reported losses of consciousness and falls in March 2013 and June 2014 to VA providers which could account for the diagnoses in the VA records, as opposed to service. A June 2017 MRI of the brain was consistent with a history of multiple sclerosis (MS), as opposed to TBI. Notably, MS is not service-connected. The Board has considered the Veteran’s lay opinion that he has a TBI that is related to service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In the instant case, the Board finds that the Veteran is competent to report what injuries he incurred and his symptoms. However, the Board finds the question of the exact diagnosis and the potential relationship between any residual symptoms and service to be complex in nature. Therefore, the Veteran is not competent to provide medical evidence establishing a diagnosis or connection between the a diagnosis and service. As such, the Board finds that the preponderance of the evidence is against the claim; therefore, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the claim is denied. 3. Entitlement to service connection for headaches The Veteran contends that he has headaches that are related to injuries during service, or alternatively, that he had headaches during service, and they have continued to the present. The Veteran has a current diagnosis of headaches. As explained above, to the extent that the Veteran believes that he has headaches related to a TBI, the Board finds that the probative evidence does not support such a diagnosis or relationship. Turning to whether the Veteran has had headaches since service, the Board notes that the Veteran is competent to report that he suffered from headaches during service, even if he did not seek treatment for them. However, the Board does not find the Veteran’s reports to be credible. At the February 2020 examination, the Veteran reported that his headaches started in January 1991. However, in a September 2014 VA record, the Veteran reported “I might have had headaches in the military, but I do not remember.” In a November 2014 record he reported having headaches “for years” but did not state when they started. At the Veteran’s hearing, he testified to having headaches during service and that he would take over-the-counter medicine for his symptoms, but that he was not treated by anyone. The Veteran’s exit examination is silent for reports of headaches. Given this, the Board finds the contemporaneous medical evidence of record, particularly the September 2014 VA record, to be more probative than the Veteran’s lay statements. Thus, the weight of the evidence is against the claim for service connection for headaches. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 4. & 5. Entitlement to service connection for a right and left knee disabilities is remanded. As noted in the December 2019 Remand, an examination and opinion were needed to address the relationship between the Veteran’s knees and his reports regarding his throbbing knee pain, trouble walking, and his in-service activities of physical labor while decommissioning two battleships. See document labeled Hearing Transcript, received September 9, 2019, pages 7-8 of 28. In compliance with the Remand, the Veteran attended a VA examination in February 2020. The examiner found that the Veteran’s bilateral knees were less likely than not related to service because there were no reports of knee pain during service. While there was not an explicit remand directive requiring the examiner to address whether the Veteran’s knee disabilities were related to his military duties of decommissioning battleships, the theory was nevertheless raised by the record and an opinion on that theory is needed. Further, the examiner stated that there were no reports of knee pain during service, but the Veteran reported knee pain in August 1991. See document labeled STR-Medical, received May 9, 2014, pages 16-17 of 112. Thus, a remand for an addendum opinion is needed. 6. Entitlement to service connection for chronic joint pain is remanded. As noted in the December 2019 Remand, an examination and opinion were needed to address the Veteran’s shoulder, neck, and back complaints and to address whether these conditions were related to service. The Remand directive included citations to various service treatment records (STRs) noting back pain. While opinions were rendered, the Board finds them to be inadequate. First, the examiner did not provide diagnoses for the Veteran’s back, elbows, and neck because stated the Veteran was “not claiming anything” related to these areas. However, the Veteran has reported diffuse muscle pains in these areas. Further, whether the Veteran has functional limitations from these potential diagnoses (or not) and the etiology of such is still relevant to the issue of service connection because the Veteran is claiming service connection for Gulf War illness and he could be service-connected under Saunders v. Wilkie, 886 F.3d 1356 (2018) (where the evidence shows that symptoms reach the level of a functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis). The Board notes that the VA examiner considered whether functional impairments exist for each condition except for the Veteran’s elbows. Second, the examiner conducted a fibromyalgia examination in March 2020, but it is unclear if the examiner indicated that a diagnosis of fibromyalgia exists. The examiner first finds that the Veteran has a diagnosis of fibromyalgia, then finds that there are no signs or symptoms attributed to fibromyalgia, but then states that the Veteran has all the tender/trigger points for fibromyalgia. The Veteran’s VA treatment records do not indicate treatment or a diagnosis of fibromyalgia. The issue is relevant because fibromyalgia is a medically unexplained chronic multisymptom illness (MUCMI) related to Gulf War Illness. 38 C.F.R. § 3.317(a)(2)(i)(B)(2). Therefore, a remand for an opinion on the Veteran’s diagnoses, etiology, and functional limitations is required. The matters are REMANDED for the following action: 1. Obtain additional VA treatment records from February 2020 to the present. 2. After obtaining any outstanding records, ask an appropriate clinician (for musculoskeletal disabilities) to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the clinician. a. The examiner should identify any right knee, left knee, shoulder, neck, back, elbow, or other joint pain disability the Veteran has presented during the claim period (from March 2014 to the present) even if resolved. If the evidence does not support a diagnosis of fibromyalgia, the clinician is asked to clarify the findings of the March 2020 fibromyalgia examination. b. For each disability, the examiner should opine as to whether the disorder at least as likely as not (a 50 percent or greater probability): (a) had an onset in service; or (b) is otherwise related to an in-service injury, event, or disease. c. For the Veteran’s bilateral knees, the clinician should specifically address the Veteran’s current reports of throbbing knee pain and trouble walking, and its potential relationship to in-service activities of physical labor on his knees while decommissioning two battleships, his in-service complaints of knee pain in August 1991, and that he had knee pain starting in 1993. See document labeled Hearing Transcript, received September 9, 2019, pages 7-8 of 28; document labeled STR-Medical, received May 9, 2014, pages 16-17 of 112; the Veteran’s report that his current knee pain began in 1993; See document labeled CAPRI, received February 27, 2017, page 213 of 1333). d. For the Veteran’s other musculoskeletal conditions, whether a diagnosis exists or not, the clinician should render an opinion on whether it is at least as likely as not that the conditions are related to service, to include the following complaints from the Veteran’s STRs. See the June 1992 STRs regarding a motor vehicle accident and neck pain (document labeled STR-Medical, received May 9, 2014, pages 25, 90, 92, and 93 of 112); the January 1991 STR regarding back pain (See document labeled STR-Medical, received date May 9, 2014, page 44 of 112); the November 1992 report of medical history at the time of separation noting recurrent back pain (See document labeled STR-Medical, received May 9, 2014, pages 38-39 of 112); the Veteran’s reports regarding in-service activities (See document labeled Hearing Transcript, received September 92019, pages 7-9 of 28); the Veteran’s report that he developed low back pain during service when he was pulling heavy loads from the lower deck which continued and worsened with time; and the November 2012 VA examiner’s notation of a 1990s diagnosis for the Veteran’s lumbar degenerative disc disease (See document labeled VA Examination, received November 10, 2012, page 48 of 55). e. If there is no diagnosed disability(ies) that the Veteran’s musculoskeletal symptoms can be attributed to, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran’s Persian Gulf War service. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.