Citation Nr: 21011612 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-34 669 DATE: March 2, 2021 ORDER Entitlement to service connection for traumatic brain injury (TBI) residuals is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMAND Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran has had a TBI or TBI residuals at any time during, or approximate to, the pendency of the claim. 2. The evidence of record is against finding that the Veteran has had bilateral hearing loss at any time during, or approximate to, the pendency of the claim. 3. Resolving all reasonable doubt in the Veteran’s favor, his tinnitus occurred within one year from separation of active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for TBI residuals are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a)–(b), 3.307(a)(3), 3.309(a), 3.385. 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2009 to May 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. A Board hearing was conducted via videoconference with the RO in Wichita, Kansas. A transcript of this hearing is contained within the electronic claims file. See February 20, 2017, Hearing Transcript (Tr.). A May 2018 Board decision dismissed the issues of entitlement to service connection for bilateral hearing loss, TBI residuals, and insomnia, as the Veteran withdrew those issues at the hearing. The Board also denied the claims for entitlement to service connection for tinnitus and a right knee condition. The Veteran appealed the entire decision to the United States Court of Appeals for Veterans Claims (CAVC). The Veteran and the Office of the General Counsel for VA (collectively referred to as the “Parties”) resolved that appeal by way of a Joint Motion for Remand (JMR). The Parties argued, and the CAVC ultimately agreed, that the record was insufficient for the Board to dismiss the claims for bilateral hearing loss, TBI residuals, and insomnia, in compliance with Acree v. O’Rourke, 891 F.3d 1009 (Fed Cir. 2018). Furthermore, the Parties agreed that, with respect to tinnitus and the right knee condition, the Board failed to obtain VA medical center (VAMC) records it acknowledged were outstanding. Thus, remand was required for the Board to correct these deficiencies. In a February 2020 decision, the Board similarly acknowledged that the record was insufficient to dismiss the aforementioned claims, requiring readjudication. Because VA still had to make additional attempts to obtain other outstanding records, however, all the claims were remanded so that VA could obtain and review these records. That same month, VA uploaded VAMC records through October 2019. A July 2020 rating decision awarded the Veteran service connection for insomnia and rated that condition with the Veteran’s already-service-connected adjustment disorder with anxiety and depressed mood. Thus, that issue no longer is on appeal and will not be discussed further. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). In July 2020, VA issued a Supplemental Statement of the Case (SSOC), continuing its denial of the remaining claims. Thus, the Board finds that VA substantially has complied with all prior remand directives and now may adjudicate the remaining claims. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (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 resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for TBI residuals is denied. The Veteran simply claims the he experienced a head injury during service. See November 27, 2013, Notice of Disagreement ((NOD)/VA Form 21-0958). Even after the Board remanded this claim in its February 2020 decision, the Veteran’s representative further confirmed that neither he nor the Veteran had any additional argument concerning this issue. See February 4, 2021, Written Brief Presentation (WBP) at 2. Service treatment records (STRs) do not reveal any complaints of, treatment for, or diagnosis of a TBI. A July 2010 TBI questionnaire completed by the Veteran candidly states, in his own writing, “I Had No Head Injury event.” The Veteran’s February 2012 separation examination noted a normal head and neurological findings. On the corresponding report of medical history, the Veteran likewise failed to report any incident involving head trauma. An April 2012 VA General Medical Compensation report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. Under the section labeled “Neurologic” conditions, TBI was not checked off. A post-service February 2013 VAMC TBI screening came back negative. It states that the Veteran “denies experiencing any TBI related events during OIF/OEF deployment.” In an unrelated June 2015 VA examination for posttraumatic stress disorder (PTSD), a VA psychologist noted that the Veteran did not have a diagnosis of a TBI. The VAMC records associated with the claims file do not sow that the Veteran receives care or treatment for any previous TBI. While the Veteran believes he has TBI residuals, he is not competent to render such a complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). With no competent and credible diagnosis of a TBI or symptoms/residuals thereof, the Board finds that the first element of service connection has not been established, and the Board need go no further with this claim. See Romanowsky, 26 Vet. App. at 293; Brammer, 3 Vet. App. at 225; 38 C.F.R. § 3.303(a). 2. Entitlement to service connection for bilateral hearing loss is denied. The Veteran asserts that, by virtue of his time in Iraq, he was exposed to loud noises and has sustained hearing loss. See November 27, 2013, NOD. The representative offered no additional argument for this claim after the Board’s most recent remand. See February 4, 2021, WBP at 2. For certain chronic diseases, including organic diseases of the nervous system (which include hearing loss and tinnitus), a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. If a chronic disease is noted in service but chronicity in service is not adequately supported, then there is required, under 38 C.F.R. § 3.303(b), a showing of continuity of symptomatology after discharge; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). In this case, service connection for the continuity of the chronic condition will be presumed related to service. Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 264–65 (2015); 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a). For VA purposes, service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Impaired hearing will be considered to be 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. STRs do not contain complaints of, treatment for, or diagnosis of hearing loss. The Veteran’s separation examination does not contain any audiological test results. The April 2012 VA General Medical Compensation report did not indicate that the Veteran had any hearing problems. A post-service July 2014 VA examination report noted audiological examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. That examination included the following test results: Hertz (HZ) 500 1000 2000 3000 4000 Right Ear 15 10 10 5 5 Left Ear 15 10 10 15 15 The Veteran’s right ear received a speech discrimination score of 100 percent, and his left ear received a score of 98 percent. VAMC records show that, in November 2014 and February 2016, the Veteran denied any hearing problems. When it comes to hearing loss, VA has prescribed certain audiological requirements that must be met for the hearing loss itself to constitute a disability. The only audiological test results that measure the Veteran’s level of hearing impairment (or the lack thereof) are the ones from July 2014. The associated report does not show that the Veteran’s hearing meets the threshold, as required by the regulations, to qualify as a current disability. VAMC records after that examination further confirm that the Veteran himself has not complained of hearing loss. Thus, the Board is satisfied that the first element of service connection has not been established, and the Board need go no further with its analysis. See Romanowsky, 26 Vet. App. at 293; Brammer, 3 Vet. App. at 225; 38 C.F.R. §§ 3.303(a), 3.385. 3. Entitlement to service connection for tinnitus is granted. For tinnitus, the Veteran likewise maintains that he was exposed to loud noises during service. See November 27, 2013, NOD. Following the Board’s most recent remand, however, the representative argues that the Board should award the Veteran service connection solely based on lay statements that the Veteran has been experiencing tinnitus in the year prior to discharge continuing into the present. See WBP at 2–3. STRs do not contain complaints of, treatment for, or diagnosis of tinnitus. The July 2010 TBI questionnaire asked the Veteran if he was experiencing tinnitus, and the Veteran reported that he was not. An October 2011 entry also notes that the Veteran was not experiencing tinnitus. The separation examination reported normal ears and neurological findings. The July 2014 VA audiological examination mentioned above noted that the Veteran reported constant, bilateral tinnitus that began “approximately two years ago.” In opining that tinnitus was unrelated to service, the examiner stated the following: Veteran does not correlate onset to an event during military service. C-File does not document any concern, diagnosis, or treatment of tinnitus. The veteran’s Distortion Product Otoacoustic Emissions Testing (DPOAE) results were consistent with normal cochlear outer hair cell function bilaterally, and no evidence of any noise damage to his cochlear outer hair cells. The November 2014 and February 2016 VAMC entries noted above for hearing loss also document that the Veteran was not experiencing tinnitus. At his February 2018 hearing, the Veteran testified that his tinnitus began about a year before he separated from service and that it never has gone away. See Tr. at 3. The undersigned Veterans Law Judge (VLJ), however, informed the Veteran that there was a negative VA opinion of record and specifically recited to the Veteran the examiner’s rationale and opinion. When asked by the undersigned if he would like to keep the record open to submit additional medical evidence that could contradict that VA opinion and help substantiate his claim, the Veteran replied “No[,] I’ll just go with what we’ve got.” Tr. at 4. First, the Board notes that the VA opinion is inadequate. If VA provides a veteran with an examination, then it must provide an adequate examination and opinion. A medical opinion is adequate when it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, when a nexus between a current disability and an in-service event is indicated, there must be a medical opinion that provides some non-speculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus. Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). Here, the examiner merely expressed that the Veteran failed to tie the onset of tinnitus to any specific in-service event and that there was no in-service ear damage noted. The absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Cf. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Furthermore, the examiner provided no detailed rationale addressing the Veteran’s lay contentions that the Veteran experienced tinnitus since service and into the present. As opposed to remanding this claim to obtain an adequate opinion, the Board, as discussed below, will resolve all reasonable doubt in the Veteran’s favor and award service connection on a presumptive basis. The Board acknowledges that tinnitus is “a noise in the ears, such as ringing, buzzing, roaring, or clicking.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994). Thus, it is a condition capable of lay observation and diagnosis. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this regard, the Board finds the Veteran competent to report a diagnosis of tinnitus. There is, however, conflicting evidence regarding the onset of the Veteran’s tinnitus. Throughout his filings and at his hearing, he stated that tinnitus began while in service and continued into the present; however, post-service VAMC records from 2014 and 2016 show that the Veteran denied tinnitus. In this case, where the evidence regarding the existence of tinnitus within a year from separation weighs both in favor and against the Veteran and are his own statements, the Board will resolve all reasonable doubt in his favor and award service connection on a presumptive basis for a chronic condition. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). REASONS FOR REMAND The Veteran argues that he has a current knee disability, which stems from the injuries and pain he sustained while in service. See June 23, 2014, NOD. For the purposes of service connection, pain alone, without any underlying pathology or disease process, can constitute a current disability if there is objective evidence that the pain causes functional impairment resulting in a decrease of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). When the Board originally denied the Veteran’s right knee claim in the May 2018 decision, it did so on the basis that the Veteran did not have a current disability. While the Board did conduct an analysis under Saunders in determining whether a current disability existed, it did not then have the benefit of the additional records noted by the Parties in the JMR and obtained after the February 2020 remand. Specifically, records from February 2016 show that the Veteran’s bilateral knees have decreased range of motion and that he takes Meloxicam (15mg) for his pain. The Veteran’s VA provider recommended that the Veteran be allowed to walk for his Army Physical Fitness Testing, as his knee conditions are permanent. Records from March 2017 show that the Veteran has chronic, episodic knee pain. The Board finds that decreased range of motion, prescription medication for pain, and a doctor’s indefinite recommendation that the Veteran be allowed to walk during physical assessments, is objective evidence that the Veteran’s right knee pain causes functional impairment resulting in a decrease of earning capacity. Thus, the Board finds that the Veteran has a current disability. See Saunders, 886 F.3d at 1363. The STRs show that the Veteran hit his right knee with a pot and subsequently complained of pain throughout active duty (April 18, 2011; February 1, 2012). VAMC records document that the Veteran has been treated for right knee pain since he established care in the VA system in 2013. While the Veteran was provided an April 2012 VA examination, the report indicated that the Veteran suffered from a previous contusion that since had resolved and had no current disability. Thus, that examination contained no nexus opinion. The Board, however, finds that a new examination and original opinion is warranted. The Veteran’s right knee pain qualifies as a disability; there is documentation of an in-service injury; the Veteran has been receiving care for knee pain almost immediately since separation from active service, which at least indicates that the two are related; and there otherwise is insufficient medical evidence to adjudicate the Veteran’s claim. Thus, remand is required for further development. See 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81; 38 C.F.R. §§ 3.159(c)(4), 20.904(a). The matter is REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Schedule the Veteran for an examination of his right knee. The examiner shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s right knee pain (or any other diagnosed right knee disability) occurred in, or is the result of, his period of active duty service, to included hitting a pot on his right knee? Note: The examiner 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. A detailed rationale supporting the examiner’s opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.