Citation Nr: 21013346 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-30 739 DATE: March 9, 2021 REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss disability, is remanded. Entitlement to service connection for residuals of a stroke, brain aneurysm, or hemorrhage, is remanded. Entitlement to service connection for residuals of craniotomy, to include memory problems, is remanded. Entitlement to service connection for a disability characterized by headaches, to include as secondary to residuals of a stroke, brain aneurysm, or hemorrhage, and/or craniotomy residuals, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from March 1971 to January 1974, and additional Army Reserve duty. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2013 and November 2017 rating decisions of a Department of Veterans’ Affairs (VA) Regional Office (RO). In August 2018, the Board denied service connection for sleep apnea and cold injury residuals of the right and left hands. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in January 2020, the Court affirmed the Board’s denial of service connection for cold injuries of the Veteran’s right and left hands; however, the Court vacated and remanded the Board’s denial of service connection for sleep apnea, finding that the Board provided an inadequate statement of reasons and bases regarding the sleep disorder claim by failing to address May and October 2013 treatment notes in which the Veteran complained of ongoing sleep problems. In September 2020, the Board remanded the sleep apnea claim for further development. A decision regarding this claim will be issued in a separate future Board decision. In May 2020, VA granted service connection for lumbosacral strain. This is considered a full grant of the benefits on appeal for the claim of entitlement to service connection for a low back disability. As such, this issue is no longer before the Board for appellate consideration. A.B. v. Brown, 6 Vet. App. 35 (1993). Based on medical evidence of record, discussed below, the Board considers the issue of entitlement to service connection for headaches to include as secondary to residuals of a stroke and residuals of a craniotomy, and has recharacterized the issue of service connection for headaches as shown on the title page of this Remand. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Discussion 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 claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2020). A remand confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Verification of Service Periods In obtaining records in the custody of a Federal department or agency, VA will make as many requests as are necessary to obtain relevant records, and VA will end its efforts to obtain such records only if it concludes that the records sought do not exist, or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2). Here, the Board’s August 2018 remand directed VA to “verify the specific dates when the Veteran was on active duty, ACDUTRA and/or INACDUTRA” and to document in the claims file “what repositories were contacted and why.” See Board Decision and Remand dated August 31, 2018 at pg. 1. This has yet to be done. A November 2019 memorandum reflects that VA confirmed the Veteran’s active duty dates by reviewing service personnel records in the electronic claims file. Notably, a May 2020 deferred rating decision shows that VA incorrectly construed the Board’s August 2018 remand directives as a request “to make a list” of the Veteran’s ACDUTRA and INACDUTRA service periods. See Deferred Rating Decision dated May 18, 2020. A June 2020 VA memorandum identifies two periods of active duty, and six periods of ACDUTRA service as having been “verified through the personnel files obtained from the National Personnel Records Center (NPRC), which were already of record and conflicts with a May 2020 deferred rating decision that does not reflect a May 1977 ACDUTRA period shown in the June 2020 memorandum. Follow up should include requests to the 245th maintenance company as identified in a November incomplete VA request for information. Although it appears that VA queried the Defense Personnel Records Information Retrieval System Internet site for service data (obtaining a negative result), the actions noted were not sufficient to comply with the Board’s remand directives with the result that the Board is unable to determine if what is represented as the Veteran’s service dates is accurate. See Stegall, supra. Accordingly, on remand, VA must contact all appropriate service record repositories and formally solicit service information for the Veteran. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2020). VA Medical Opinions Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 1. Hearing Loss Pursuant to the Board’s August 2018 remand, the Veteran was afforded a VA hearing examination in January 2020. The examination results include no auditory thresholds at the frequencies set forth in VA regulations. 38 C.F.R. § 3.385. If the Veteran does not have hearing loss for VA purposes, the inquiry regarding service connection ends with that determination. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there necessarily can be no valid claim). However, the VA examiner issued an associated etiology opinion and a June 2020 addendum opinion concluding that the Veteran’s hearing loss is not related to service, suggesting that the Veteran may have hearing loss for VA purposes. As such, an addendum opinion is needed to clarify this issue, and fully address the Veteran’s lay statements and submitted medical literature. 2. Tinnitus The January 2020 VA examiner opined that the intermittent noises described by the Veteran during the examination are transient ear noises not indicative of noise-induced tinnitus, and, apparently quoting a VA training module, further stated that “chronic tinnitus is defined as an ear noise that lasts at least five minutes and occurs at least two times per week.” See VA medical opinion dated January 30, 2020. The examiner also noted that transient ear noise is a common auditory phenomenon and “does not seem to be linked” to noise exposure. Id. However, the opinion does not disclose the bases for the medical definitions of tinnitus and transient ear noise, which, in this instance, limits the examiner’s analysis and renders the opinion conclusory and not sufficiently explained. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Even assuming that the transient noise is not tinnitus, the examiner failed to address whether transient ear noise could be related to in-service noise exposure in the context of the Veteran’s statements that he experienced “excessive noise” as a cook, a wireman, from exposure to gunfire and artillery, and as a mechanic in the Reserve. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant’s lay assertions regarding onset of symptoms or injury during service). For these reasons, the January 2020 VA medical opinion regarding tinnitus is inadequate. Accordingly, an addendum opinion addressing the etiology of the Veteran’s tinnitus and/or transient noise must be obtained on remand. See Barr, supra. 3. Stroke Residuals and Craniotomy Residuals Favorable and unfavorable VA medical opinions address the etiology of residuals of the Veteran’s stroke and craniotomy. See VA medical opinions dated January 17, 2020 and October 6, 2020. However, the rationale for each of the opinions appears to blur the discussion of craniotomy residuals and stroke residuals to the extent that it is impossible to determine which disability(s) each opinion was intended to address. Indeed, the opinions arguably do not address stroke residuals at all. See Nieves-Rodriguez, 22 Vet. App. at 304. Notably, the negative opinion regarding whether craniotomy residuals unmistakably preexisted and were aggravated by service failed to use the required legal phrasing for the opinion. Therefore, the opinions addressing the etiology of stroke/craniotomy residuals are inadequate. Accordingly, addendum opinions addressing the etiology of the Veteran’s stroke and craniotomy residuals must be obtained on remand. See Barr, supra. 4. Headaches A January 2020 VA medical opinion concludes that the Veteran’s migraine headaches onset in association with the diagnosis and treatment of his hemorrhage/aneurysm repair in 1982. See VA medical opinion dated January 17, 2020 at pg. 10. As such, the issue of service connection for the Veteran’s stroke residuals and craniotomy residuals may have a significant impact on the Veteran’s headaches claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue may have a “significant impact” upon another, the two claims are inextricably intertwined). Therefore, the claim for entitlement to service connection for headaches, to include as secondary to residuals of a stroke, brain aneurysm, or hemorrhage, and/or craniotomy residuals, is inextricably intertwined with the stroke and craniotomy residuals claims and must be remanded. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Provide the Veteran’s representative with a copy of the January 30, 2020 VA hearing loss and tinnitus examination report, as requested in correspondence dated January 18, 2021 (see VBMS entry with document type “C&P Exam,” receipt date 01/30/2020). 3. Contact all appropriate resources, including service departments, to verify the specific dates when the Veteran was on active duty, ACDUTRA, and/or INACDUTRA. Document for the claims file what repositories were contacted and why. If necessary, the Veteran should be requested to provide any assistance in obtaining this clarifying information. All verified dates of service and all responses received should be documented in a memorandum, which is to be associated with the electronic claims file. If it is determined that the records sought do not exist, or that further efforts to obtain those records would be futile, a memorandum reflecting this determination as well as all efforts undertaken to obtain the records, should be associated with the electronic claims file, and a copy of the memorandum shall be provided to the Veteran and his representative. 4. Attach a memorandum to the claims file that delineates the Veteran’s verified periods of active duty, ACDUTRA, and/or INACDUTRA. 5. Then, obtain SEPARATE addendum opinions from a VA physician(s) (M.D.) to determine the nature and etiology of (i) any residual of craniotomy, to include memory problems disabilities; and (ii) any residual of a stroke, brain aneurysm, or hemorrhage. The examiner must be provided with a copy of the memorandum that outlines the Veteran’s verified periods of active duty, ACDUTRA, and INACDUTRA. The examiner must SEPARATELY opine whether (i) any residual of craniotomy, to include memory problems disabilities; and (ii) any residual of a stroke, brain aneurysm, or hemorrhage is at least as likely as not related to an in-service injury, event, or disease and the approximate date of onset of each in-service injury, event, or disease. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. (a) The examiner should state whether there is clear and unmistakable (undebatable) evidence that (i) any residual of craniotomy, to include memory problems disabilities; and (ii) any residual of a stroke, brain aneurysm, or hemorrhage preexisted any of the Veteran’s verified periods of active duty. (b) If the answer to question (a) is yes, is there clear and unmistakable (undebatable) evidence that (i) any residual of craniotomy, to include memory problems disabilities; and (ii) any residual of a stroke, brain aneurysm, or hemorrhage did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran’s active duty? (c) If the answer to question (a) is no, is it at least as likely as not (a 50 percent or greater probability) that the (i) any residual of craniotomy, to include memory problems disabilities; and (ii) any residual of a stroke, brain aneurysm, or hemorrhage first manifested during, or is otherwise related to, the period of active duty? (d) The examiner should state whether the (i) any residual of craniotomy, to include memory problems disabilities; and (ii) any residual of a stroke, brain aneurysm, or hemorrhage preexisted any of the Veteran’s verified periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDTRA). (e) For each period of ACDUTRA and/or INACDUTRA that the (i) any residual of craniotomy, to include memory problems disabilities; and (ii) any residual of a stroke, brain aneurysm, or hemorrhage preexisted, did the disorder worsen in severity during the period of service? If so, the examiner should indicate whether the increase in severity was consistent with the natural progression of the disorder or whether the increase represented an “aggravation” of the disorder beyond its natural progression. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service,” unless the underlying condition, as contrasted with symptoms, has worsened. (f) For each period of ACDUTRA and/or INACDUTRA that the (i) any residual of craniotomy, to include memory problems disabilities; and (ii) any residual of a stroke, brain aneurysm, or hemorrhage did not preexist, is it at least as likely as not (a 50 percent or greater probability), that the disorder is due to a disease or injury incurred during any period of ACDUTRA; or an injury incurred during any period of INACDUTRA? The examiner should provide a complete rationale for each opinion and fully identify medical literature and other resources referenced in opinions, including sources of medical terms and definitions. 6. Obtain an addendum report/opinion from the VA audiologist who conducted the January 2020 VA hearing loss and tinnitus examination, if available, as to the nature and severity of the Veteran’s diagnosed bilateral hearing loss (if the Veteran has hearing loss for VA purposes) and the nature and etiology of the Veteran’s tinnitus and/or transient ear noise. The examiner must be provided with a copy of the memorandum that outlines the Veteran’s verified periods of active duty, ACDUTRA, and/or INACDUTRA. *The need for another examination(s) is left to the discretion of the medical professional offering the addendums. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Please clarify whether the Veteran has hearing loss for VA purposes under 38 C.F.R. § 3.385. If the Veteran does not have hearing loss for VA purposes, no etiology opinion need be provided and subsequent questions regarding bilateral hearing loss need not be addressed. If the Veteran does have hearing loss for VA purposes, please respond to the questions below. (b) Please clarify whether the Veteran has tinnitus, transient ear noise, or both. The examiner must opine whether the Veteran’s (i) bilateral hearing loss; and (ii) tinnitus/transient ear noise is at least as likely as not related to an in-service injury, event, or disease and the approximate date of onset of each in-service injury, event, or disease. (a) The examiner should state whether there is clear and unmistakable (undebatable) evidence that the (i) bilateral hearing loss; and (ii) tinnitus/transient ear noise preexisted any of the Veteran’s verified periods of active duty. (b) If the answer to question (a) is yes, is there clear and unmistakable (undebatable) evidence that (i) bilateral hearing loss; and (ii) tinnitus/transient ear noise did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran’s active duty? (c) If the answer to question (a) is no, is it at least as likely as not (a 50 percent or greater probability) that: (1) the (i) bilateral hearing loss; and (ii) tinnitus/transient ear noise first manifested during, or is otherwise related to, the period of active duty? (d) The examiner should state whether the (i) bilateral hearing loss; and (ii) tinnitus/transient ear noise preexisted any of the Veteran’s verified periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDTRA). (e) For each period of ACDUTRA and/or INACDUTRA that the (i) bilateral hearing loss; and (ii) tinnitus/transient ear noise preexisted, did the disorder worsen in severity during the period of service? If so, the examiner should indicate whether the increase in severity was consistent with the natural progression of the disorder or whether the increase represented an “aggravation” of the disorder beyond its natural progression. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service,” unless the underlying condition, as contrasted with symptoms, has worsened. (f) For each period of ACDUTRA and/or INACDUTRA that the (i) bilateral hearing loss; and (ii) tinnitus/transient ear noise did not preexist, is it at least as likely as not (a 50 percent or greater probability), that the disorder is due to a disease or injury incurred during any period of ACDUTRA; or an injury incurred during any period of INACDUTRA? (g) If bilateral hearing loss is determined to be related to service, is it at least as likely as not (a 50 percent or greater probability) that that the currently diagnosed tinnitus/transient ear noise was CAUSED or AGGRAVATED by the bilateral hearing loss? *The examiner must consider the Veteran’s statements regarding in-service noise exposure as a cook, a wireman, from exposure to gunfire and artillery, and as a mechanic in the Reserve. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence regarding the Veteran’s hearing loss claim, which is identified by VBMS label and receipt date in parenthesis: (i) Article regarding acceleration of age-related hearing loss by early noise exposure (see VBMS entry with document type “Correspondence,” receipt date 03/11/2018); and (ii) Veteran’s remarks regarding in-service noise-exposure (see VBMS entry with document type “VA 21-4138 Statement In Support of Claim,” receipt date 07/10/2020). The Board’s reference to evidence in this context should not be construed as a determination of its credibility. The examiner should provide a complete rationale for each opinion and fully identify medical literature and other resources referenced in opinions, including sources of medical terms and definitions. 7. Thereafter, ensure that the examiners have substantially responded to the questions posed by the Board, and if not, take corrective action. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.