Citation Nr: 21014388 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-46 760 DATE: March 12, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for sleep disturbances, to include as secondary to a low back condition, is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from June 1981 to September 1981, and active duty from December 1990 to May 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of March 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In November 2018, the Board remanded these issues for further development. After reviewing the current evidence of record, the Board now finds that the RO has not substantially complied with its November 2018 remand directives. An additional remand is therefore required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). Bilateral Hearing Loss and Tinnitus The Board remanded these issues for an additional VA examination, finding that a prior VA examination report of June 2011 was inadequate to support adjudication of these claims. In particular, the Board noted that there was no opinion addressing the matter of whether there was a shift in auditory thresholds noted in the service treatment records. The claims file at the time of the June 2011 examination was without the Veteran’s service treatment records. The Board noted the findings in the service treatment records, which were by then in the record, and remanded the hearing loss claim for an opinion taking into account any shifts shown in the auditory thresholds during the Veteran’s December 1990 to May 1991 period of service. The examiner was specifically asked to address whether the Veteran’s hearing loss began or is otherwise related to the Veteran’s period of active service. If the examiner found the hearing loss to preexist the period of active service, an aggravation opinion was required. The examiner was instructed to specifically discuss the shifts in auditory thresholds, even if those shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner was also asked to consider and reconcile any conflicting audiograms and opinions, to address the Veteran’s lay statements related to continuing hearing loss symptoms through the years, and consider and directly address the Veteran’s in-service and post-service noise exposure. If the current hearing loss was deemed unrelated to service, the examiner was asked, if possible, to identify a cause considered more likely and explain why that is so. The Veteran was then afforded a VA examination in October 2019. The examiner confirmed the presence of hearing loss as defined by 38 C.F.R. § 3.385 in both ears. As for the right ear, the examiner suggested a positive nexus with the Veteran’s service, but considered incorrect service dates. As noted above, and at the time of the prior Board remand, the Veteran had ACDUTRA between June 1981 and September 1981, and active duty from December 1990 to May 1991. The October 2019 VA examiner explained the rationale for the positive opinion to be a significant permanent threshold shift from entrance in May 1991 to separation in April 1991. The examiner also referenced an “in-service audiogram on 09/17/2000.” It is clear the examiner was not provided information related to the Veteran’s dates of service. For this reason, this opinion is not adequate. As to the left ear, the examiner provided a negative nexus opinion, again referencing incorrect service dates. Moreover the examiner reasoned that there was not evidence of a causal connection due to the lack of findings of left ear hearing loss at separation, which is violation of Hensley. The examiner also did not provide any discussion of the Veteran’s reported history of symptoms, which was explicitly required by the prior Board remand. Finally, the examiner indicated that the Veteran had post service noise exposure as well and therefore the hearing loss is “not conceded based on military noise alone.” This implies the Veteran’s hearing loss may be at least in part due to the military noise exposure. For these reasons, the left ear opinion is also not adequate. While the Board regrets the additional delay, the hearing loss claim must again be remanded. With regard to the tinnitus, the examiner indicated that the Veteran reported an onset of tinnitus in 2004 and also noted that the type of tinnitus the Veteran experiences is not consistent with noise-induced tinnitus. However, the examiner did indicate that the tinnitus is at least as likely as not a symptom associated with his hearing loss. Therefore, because a decision on the hearing loss claim could significantly impact a decision on the tinnitus claim, the issues are inextricably intertwined. A remand of the tinnitus claim is also required. Low Back and Left Knee Conditions The Board remanded these claims for an initial VA examination. While this examination was provided in October 2019, the Board finds the resulting medical opinions inadequate to support adjudication of the Veteran’s claims. The VA examiner’s opinion as to the Veteran’s lower back condition, in full, states as follows: “During service, low back condition was acute only. There is no evidence of chronicity of care. A nexus has not been established.” In commenting on the evidence of record, the VA examiner stated only that “[the separation] exam does not indicate any concerns of a low back injury” and that “[medical] records are silent for a low back condition until 10/3/2006 when the Veteran was seen and reported a 3 months history of low back pain.” While evidence of a prolonged period without medical complaint may be considered along with all the other evidence of record, the Board notes that the absence of evidence may not generally be considered substantive negative evidence when adjudicating a claim, unless such evidence would ordinarily be recorded. See Maxson v. Gober, 230 F.3d 1330 (2000); see also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The VA examiner’s opinion does not provide any foundation or explanation for why an alternative etiology, such as age or a non-service-connected injury, is more likely than not the cause of the Veteran’s lower back condition. Moreover, as noted in the prior Board remand, the Veteran reported in a February 2014 statement and at the January 2017 informal conference with the RO that the low back disability is due to a back injury during training at Fort Hood, when he was rear-ended in a Bradley vehicle by another vehicle causing him to hit his back on an iron seat. Service treatment records show the Veteran was stationed at Fort Hood in January 1991, during his period of active duty. Further, in July 2012, a fellow service member submitted a statement recalling the Veteran’s complaints of back pain in service while carrying ammunition. None of this was considered in the October 2019 VA examiner’s rationale. Additionally, the VA examiner’s opinion does not address the Veteran’s assertions that he has experienced lower back symptoms “[since] active duty… most of the time[,]” or provide any reasoning supporting a conclusion that the Veteran’s assertions are not credible. Examiners are not free to ignore the competent and credible reports of a history of symptoms. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Remand is, therefore, required for another opinion. As to the Veteran’s left knee, the October 2019 VA examiner opined that the Veteran has no diagnosis of a left knee condition. The VA examiner’s opinion on this point, in full, is as follows: “Symptoms are subjective only. Objective exam is normal. There is no objective evidence of a chronic condition. A nexus has not been established.” The VA examiner did not provide any explanation or reasoning to support the inference that the Veteran’s assertions of left knee pain, using a knee brace and having difficulty climbing stairs are not credible. In addition, the examiner did not discuss whether the symptoms of pain reach the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). For this reason, the examiner’s opinion is inadequate. Further, the prior Board remand noted the Veteran’s reports of a history of knee pain, as well as his contention that he injured his left knee from physical training, patrolling, running, when he was rear ended in the Bradley vehicle at Fort Hood, and when he was in full gear, stepped on a rock, and fell on his left knee. See February 2014 Statement in Support of Claim; July 2014 Notice of Disagreement; and January 2017 RO Conference Report. If the Veteran’s knee symptoms are deemed to reach a level of a functional impairment of earning capacity, then a nexus examination is indeed necessary. Sleep Disorder, Including as Secondary to the Claimed Low Back Condition The Veteran asserts that pain resulting from his lower back condition results in sleep disturbances. This issue is therefore inextricably intertwined with the issue of entitlement to service connection for a lower back condition. A remand of the sleep disorder claim is also required These matters are therefore REMANDED for the following action: 1. Provide the Veteran’s claims file to the October 2019 VA audio examiner. If the October 2019 VA audio examiner is unavailable, provide the Veteran’s claims file to an appropriately-qualified audio examiner. The Board leaves it to the examiner providing the opinion to determine whether an additional examination is needed. The RO should provide the information related to the Veteran’s dates of active service (active duty and ACDUTRA) to the examiner. The examiner shall review the claims file, including a copy of this remand, and provide an opinion as to whether the Veteran’s bilateral hearing loss (a) began or is otherwise related to an in-service injury, event or disease, to include any in-service noise exposure; (2) manifested within a year after the Veteran’s discharge from active service; or (3) was noted during service with continuity of the same symptomatology since service. The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding his history of symptoms, which are, at least in part, summarized in the narrative portion of this remand, above. The examiner is reminded that the absence of a hearing loss disability as defined by VA regulation at the time of separation is not a sufficient basis for a negative nexus opinion. Hensley, 5. Vet. App. 155. If hearing loss is found to have existed prior to any confirmed active service period, the examiner should provide an opinion as to whether there is evidence of aggravation (permanent worsening beyond the natural course) during that period of active duty. The examiner should consider and directly address any shifts of acuity thresholds noted in the service treatment records, particularly during the Veteran’s confirmed active service dates. The examiner should consider and directly address both the Veteran’s in-service and post-service noise exposure. A well-reasoned rationale should be provided for any opinion expressed. If the examiner concludes that the Veteran’s bilateral hearing loss is more likely than not due to a non-service-connected etiology, such as age or occupational noise exposure, the examiner shall clearly explain the reasoning supporting such a conclusion. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s back disorder is at least as likely as not related to his active service. The examiner should determine whether it is at least as likely as not that any low back disorder present during the pendency of this claim (1) began or is otherwise related to an in-service injury, event or disease (the examiner must address the various reports of in-service incidents, summarized in the narrative portion of this remand, above); (2) manifested within a year after the Veteran’s discharge from active service; or (3) was noted during service with continuity of the same symptomatology since service. The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding his history of symptoms. A well-reasoned rationale should be provided for any opinion expressed. If the examiner concludes that the Veteran’s back disorder is more likely than not due to a non-service-connected etiology, such as age or post-service occupational factors, the examiner shall clearly explain the reasoning supporting such a conclusion. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left knee symptoms of pain reach the level of a functional impairment of earning capacity. Saunders, 886 F.3d 1356. The clinician must consider the Veteran’s reports of left knee pain, using a knee brace and having difficulty climbing stairs. The Board leaves it up to the clinician providing the opinion as to whether additional physical examination of the Veteran is necessary. If the left knee pain reaches a level of functional impairment in earning capacity, the examiner should recognize that this is a disability for VA purposes and should provide an opinion as to whether it is at least as likely as not related to his active service. (The examiner must address the various reports of in-service incidents, summarized in the narrative portion of this remand, above). The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding his history of symptoms. A well-reasoned rationale should be provided for any opinion expressed. If the examiner concludes that the Veteran’s left knee disorder is more likely than not due to a non-service-connected etiology, such as age or post-service occupational factors, the examiner shall clearly explain the reasoning supporting such a conclusion. 4. If the lumbar spine disability is deemed causally connected to the Veteran’s service, then the RO should schedule an examination to assess the nature and etiology of the claimed sleep disorder, to include whether it is proximately due to or aggravated by the back disability. 5. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.