Citation Nr: 21010204 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-16 939 DATE: February 24, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED The claim for service connection for vertigo is remanded. The claim for service connection for headaches is remanded. The claim for service connection for blurry vision is remanded. The claim for service connection for tinnitus is remanded. The claim for service connection for a low back disability is remanded. The claim for service connection for left lower extremity radiculopathy is remanded. FINDING OF FACT The Veteran does not have hearing loss meeting the definition of a disability for VA compensation purposes. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1985 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board denied the Veteran’s claims for service connection for vertigo, headaches, blurry vision, tinnitus, hearing loss, a low back disability, and left lower extremity radiculopathy, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated the Board’s November 2018 decision and remanded the claims for further development and readjudication. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. 1. Entitlement to service connection for bilateral haring loss Upon review of the record, the Board finds that the Veteran does not have a current hearing loss disability. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Service treatment records contain a March 1989 report of medical history showing that the Veteran reported hearing loss upon his discharge from active duty, which was described as sensing “extreme loss of hearing due to noises not associated with.” However, audiometric testing did not show auditory thresholds of 40 decibels or greater at 500, 1000, 2000, 3000, or 4000 Hertz, nor were auditory thresholds 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz. In this regard, the auditory thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 20, 30, 15, 5, and 10 decibels, respectively, in the right ear and 5, 5, 15, 20, and 15 decibels, respectively, in the left ear. Post-service treatment records show that the Veteran underwent audiometric testing again in November 2005, which again did not show auditory thresholds of 40 decibels or greater at 500, 1000, 2000, 3000, or 4000 Hertz; or auditory thresholds of 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz; or speech recognition scores using the Maryland CNC Test of less than 94 percent. In this regard, the auditory thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 10, 10, 20, 20, and 20, respectively, in the right ear upon air and bone conduction testing and 5, 10, 20, 20, and 25 decibels, respectively, in the left ear upon air conduction testing and 10, 10, 20, 20, and 20 decibels, respectively, in the left ear upon bone conduction testing. Speech recognition testing using the Maryland CNC word list revealed scores of 100 percent in the right ear and 96 percent in the left ear, which the treatment provider described as “excellent bilaterally.” The treatment provider indicated that the Veteran’s hearing was normal in the right ear and normal at 250 Hertz to 6000 Hertz in the left ear, sloping to moderate hearing loss at 8000 Hertz. A November 2009 VA treatment record shows that the Veteran reported no change in his hearing. A December 2009 VA treatment record shows that the Veteran was referred to audiology due to symptoms of tinnitus. During that appointment, he initially stated that his hearing was “bad,” but he later stated that his hearing was “good” and that he did not have hearing difficulty. The Veteran indicated that he did not want to undergo a hearing evaluation because his hearing had already been tested in Michigan, and the results indicated normal hearing sensitivity. A December 2009 neurology treatment record notes that the Veteran’s hearing was normal bilaterally. The Veteran underwent a VA audiological examination in November 2012, and the examiner indicated that audiologic findings could not be obtained and speech recognition testing could not be performed because “behavioral responses were invalid and unreliable and not suitable for rating purposes.” The examiner indicated that the “Veteran’s responses were unreliable and not consistent with audiologic findings even after repeated instructions” and concluded that the “Veteran was unable or unwilling to provide valid behavioral responses.” In March 2013, another VA examiner indicated that no etiological opinion was rendered with respect to the claim for service connection for hearing loss because the Veteran did not have a diagnosis of a hearing loss disability. Although the Veteran is competent to report subjective symptoms of decreased hearing, the diagnosis of hearing loss meeting the definition of a disability for VA compensation purposes requires audiometric testing to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the opinion of the Veteran regarding the diagnosis of a current hearing loss disability is not competent medical evidence. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that “[i]n the absence of proof of a present disability, there can be no valid claim”). In this case, there is no competent medical evidence of record showing that the Veteran has hearing loss meeting the definition of a disability for VA compensation purposes. See 38 C.F.R. § 3.385. Therefore, there is no basis upon which service connection can be awarded, and the claim for service connection for hearing loss is denied. The Board acknowledges the Court’s March 2020 Memorandum Decision in which it determined that it was “unclear how the Board found that the [Veteran] did not have a current disability when the March 1989 [report of medical history] indicated he suffered from hearing loss, and the November 2005 examination report revealed a further shift in hearing thresholds.” Citing Hensley v. Brown, 5 Vet. App. 155, 157 (1996) for the proposition that “normal hearing is between 0 to 20 [decibels], and higher threshold levels indicate some degree of hearing loss,” the Court noted that the Veteran’s March 1989 report of medical history showed hearing loss with hearing thresholds of 25 decibels at 8000 Hertz upon separation from service, and a November 2005 audiological evaluation revealed further hearing threshold shifts in the 4000, 6000, and 8000 ranges. The Court ordered the Board “to provide an adequate statement of reasons or bases addressing the [Veteran’s] shift in hearing.” The Board acknowledges the aforementioned threshold shifts. However, “hearing loss is not considered a ‘disability’ unless the loss exceeds a certain threshold on an audiometric test,” and “if a veteran’s hearing loss is not a ‘disability’ under section 3.385, there is no need for VA to determine whether the hearing loss is related to service because no entitlement to disability compensation exists if the hearing loss falls below the minimum standards.” McKinney v. McDonald, 28 Vet. App. 15, 25 (2016). Indeed, even the Hensley court acknowledged that “[e]ntitlement to service connection for impaired hearing is subject to the additional requirements 38 C.F.R. § 3.385 … which provides: Service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status shall not be considered service-connected when the thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are all less than 40 decibels; the thresholds for at least three of these frequencies are 25 decibels or less; and the speech recognition scores using the Maryland CNC Test are 94 percent or better.’ Hensley, 5 Vet. App. at 158. In this case, there is no competent evidence of record showing auditory thresholds of 40 decibels or greater at 500, 1000, 2000, 3000, or 4000 Hertz; or auditory thresholds of 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz; or speech recognition scores using the Maryland CNC Test that are less than 94 percent. See 38 C.F.R. § 3.385. As there is no evidence showing that the Veteran has hearing loss meeting the definition of a disability for VA compensation purposes in accordance with 38 C.F.R. § 3.385, there is no basis upon which service connection can be awarded and further discussion of any post-service threshold shifts is not necessary. See McKinney, 28 Vet. App. at 25. Therefore, and the claim for service connection for hearing loss is denied. The Board also acknowledges the assertion of the Veteran’s attorney that the 2012 audiological examination and 2013 addendum were inadequate. However, the only argument raised by the Veteran’s attorney relates to the adequacy of an April 2013 opinion addressing the etiology of the Veteran’s tinnitus. The Veteran’s attorney has not asserted that the examination was inadequate with respect to hearing loss and acknowledged the Veteran’s prior statement that “he did not want to complete a hearing evaluation today because his hearing has already been tested in Michigan where results indicated normal hearing sensitivity.” Indeed, the November 2012 VA examiner attempted to provide the Veteran with audiological testing to ascertain whether he has a current hearing loss disability, but the “Veteran was unable or unwilling to provide valid behavioral responses.” Accordingly, the Board finds that VA has fulfilled its duty to assist in providing an adequate VA examination. REASONS FOR REMAND 2. The claim for service connection for vertigo is remanded. 3. The claim for service connection for headaches is remanded. 4. The claim for service connection for blurry vision is remanded. The Veteran seeks service connection for vertigo, headaches, and blurry vision, which he asserts were caused by in-service exposure to hazardous chemicals and environmental contaminants while serving at Fort McClellan, Alabama. Service personnel records confirm that the Veteran was stationed at Fort McClellan in October 1985 and from March 1988 to May 1989. In support of his assertion that he may have been exposed to hazardous chemicals and environmental contaminants, the Veteran submitted several articles regarding the production, use, and storage of various chemicals at Fort McClellan and a nearby Monsanto plant. The Veteran’s attorney has also cited to portions of VA’s public health website, which indicates that potential exposures at Fort McClellan could have included radioactive compounds, chemical warfare agents, and airborne polychlorinated biphenyls (PCBs) and that “exposures to high levels of these compounds have been shown to cause a variety of adverse health effects.” The website further indicates that “there is no evidence of exposures of this magnitude having occurred at Fort McClellan,” and “[t]here are currently no adverse health conditions associated with service at Fort McClellan.” See https://www.publichealth.va.gov/exposures/fort-mcclellan/index.asp. In the November 2018 decision, the Board found that although the Veteran was stationed at Fort McClellan, there was no competent or credible evidence showing that he was actually exposed to Agent Orange or any other hazardous materials at Fort McClellan or that any of the Veteran’s claimed disabilities were related to any possible exposure. In the June 2020 Memorandum Decision, the Court noted that the Veteran “submitted articles showing soldiers stationed at Ft. McClellan were exposed to various chemicals other than herbicide agents or Agent Orange, including radioactive materials, polychlorinated biphenyls, and other various chemicals in water streams.” The Court determined that “the Board provided an inadequate statement of reasons or bases regarding the Veteran’s alleged chemical exposure at Ft. McClellan” and that its “limited analysis of herbicide or Agent Orange frustrates judicial review.” The Veteran’s attorney asserts that the claims should be remanded in order to request verification of the types of exposures the Veteran may have been exposed to at Fort McClellan. Accordingly, the claims are remanded in order to attempt to verify the Veteran’s claimed in-service exposures. 5. The claim for service connection for tinnitus is remanded. The Veteran asserts that his tinnitus was caused by in-service noise exposure, or in-service head injuries, or claimed exposures at Fort McClellan. Service treatment records show that upon the Veteran’s discharge from active duty, he denied any history of head injury or loss of consciousness on a March 1989 report of medical history. However, as noted above, the Veteran did report sensing “extreme loss of hearing due to noises not normally associated with.” Post-service treatment records show that during a November 2005 audiological evaluation, the Veteran reported bilateral tinnitus and dizziness, which began in March. During a December 2009 audiological evaluation, the Veteran related the onset of his tinnitus to around 2004, when he began experiencing a sensation of pressure/fullness, ear pain, headaches, dizziness, and vision problems. During the November 2012 VA audiological examination, the Veteran reported having tinnitus for three days during service after a surprise discharge of a M60 machine gun, but stated that his current tinnitus first began about six or seven years earlier. In April 2013, a VA examiner reviewed the evidence of record and opined that the Veteran’s tinnitus was less likely than not related to in-service noise exposure. In support of this, the examiner explained that the Veteran related the onset of his current tinnitus to years after his discharge from active duty, and the claims file “was silent for complaints of hearing loss and tinnitus.” The Veteran’s attorney asserts that the April 2013 opinion is inadequate because it conflicts with VA guidance from a March 2010 VA Training Letter, which states that the onset of tinnitus may be sudden or gradual and can be triggered months or years after an underlying cause (such as hearing loss) occurs, and therefore, delayed-onset tinnitus must be considered. The Veteran’s attorney also asserts that the April 2013 opinion ignores the March 1989 report of medical history showing that the Veteran reported “extreme loss of hearing due to noises not normally associated with …,” which could indicate that the Veteran was reporting difficulty hearing due to tinnitus. Indeed, the examiner did not address this evidence and indicated that the claims file “was silent for complaints of hearing loss and tinnitus.” See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that “[a]n opinion based on an inaccurate factual premise has no probative value”). Accordingly, the Board finds that a remand is necessary in order to obtain a new medical opinion. 6. The claim for service connection for a low back disability is remanded. The Veteran asserts that a current low back disability began during service. However, service treatment records show no complaints or treatment for a back condition during service, and the Veteran denied any history of recurrent back pain upon his discharge from active duty in 1989. Post-service treatment records dated prior to the Veteran’s service connection claim for a low back disability show that he reported sudden onset of back pain in 1999 after a lifting injury at work. The Veteran was provided a VA back and peripheral nerve examination in October 2012. VA asked the examiner to provider an opinion as to whether the Veteran’s left lower extremity radiculopathy was related to in-service stitches he received in May 1988. No medical opinion was requested with respect to the Veteran’s service connection for a back disability. The peripheral nerve examination report indicates that the examiner was unable to provide the requested opinion at that time because the claims file was not available for review. In the November 2018 decision, the Board found the Veteran’s claim of continued back pain since service lacked credibility and indicated that no medical opinion was necessary because there was no evidence of an in-service event, injury, or disease related to the Veteran’s back. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In the June 2020 Memorandum Decision, the Court acknowledged the Board’s finding that a medical opinion was not required with respect to the Veteran’s service connection claim for a low back disability, but determined that “the Board failed to opine on whether the October 2012 opinion was adequate, and if not, to provide an adequate examination.” See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the Court’s Memorandum Decision, it appears that VA must request a medical opinion with respect to the Veteran’s claim for service connection for a low back disability. Accordingly, the claim is remanded to obtain such an opinion. 7. The claim for service connection for left lower extremity radiculopathy is remanded. As noted in the Court’s June 2020 Memorandum Decision, the Veteran’s claim for service connection for left lower extremity radiculopathy is inextricably intertwined with the claim for service connection for a low back disability. Therefore, that claim is remanded for contemporaneous adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issues has been rendered). The matters are REMANDED for the following action: 1. Attempt to verify through official sources the Veteran’s alleged exposure to hazardous chemicals and environmental contaminants while stationed at Fort McClellan, Alabama in October 1985 and from March 1988 to May 1989, in accordance with appropriate adjudication manual provisions. 2. Provide the claims file to an audiologist to obtain a supplemental opinion with respect to the Veteran’s service connection claim for tinnitus. Do not schedule the Veteran for another examination unless it is deemed necessary to respond the question presented. Following a review of the claims file, the audiologist should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s tinnitus is related to in-service noise exposure. A complete rationale must be provided. In rendering the opinion, the examiner should address the Veteran’s report of “extreme loss of hearing due to noises not normally associated with” on a March 1989 report of medical history and explain why the Veteran’s current tinnitus is/is not merely a delayed residual of in-service noise exposure. 3. Provide the claims file to an appropriate VA examiner to obtain an opinion with respect to the Veteran’s service connection claim for a low back disability. Do not schedule the Veteran for another examination unless it is deemed necessary to respond the question presented. Following a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that a current low back disability was incurred in or caused by service. A complete rationale must be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.