Citation Nr: 21021808 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-01 871 DATE: April 14, 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 right-hand disability is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from July 1975 to January 1976 and from May 2,1982 to May 15, 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2014 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in May 2019 before the undersigned Veterans Law Judge. The transcript is of record. In its December 2019 Board remand, the Board noted that with regard to the issues of service connection for a hand fracture, bilateral hearing loss, and tinnitus, the RO did not review the Veteran’s service treatment records and thus, the claims must be reconsidered and not considered a petition to reopen. See 38C.F.R. §3.156(c). The Board remanded the Veteran’s claims for service connection for a hand fracture, bilateral hearing loss, tinnitus, bilateral pes planus, and a cervical spine disability for further development. In January 2021 and February 2021 rating decisions, the Veteran’s claim for a cervical spine disability and bilateral pes planus were granted and thus no long before the Board. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded The Veteran contends that her bilateral hearing loss and tinnitus were a direct result of exposure to acoustic shock when she was on active duty in the military. See May 2012 Statement in Support of Claim. The Veteran stated that she worked around grenade launchers and was exposed to explosions from ground mines. Furthermore, the Veteran noted that as a materials storage specialist, she worked in the motor pool where she was exposed to engine noises from heavy equipment. The Veteran testified that she noticed her hearing getting worse during service. A review of the Veteran’s service treatment records show that the Veteran had an audiological evaluation upon entrance in March 1975. Auditory thresholds for the right and left ear, in decibels, at 500 hertz (Hz), were noted to be 20. The Veteran’s audiological evaluation at separation in January 1976 showed auditory thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 5, 5, 5, 5, 0. Auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 0, 0, 0, 0, 0. The Veteran also had an audiological evaluation, in February 1980, 4 years after active duty for training. Auditory thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 30,15,10, 20, 20. Auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 25, 15, 20, 15, 20. An audiogram in June 1984 showed auditory thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 30, 20, 20, 20, 20. Auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 30, 20, 20, 20, 20. In an August 2010 VA treatment record, the Veteran was seen for an audiological evaluation. The Veteran complained of decreased hearing and intermittent tinnitus bilaterally. The Veteran reported a positive history of ear trauma from an incident in 1992. The Veteran was afforded a VA examination in December 2012. Auditory thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 15, 10, 15, 20, 25. Auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 15, 10, 10, 25, 25. Speech discrimination scores in the right ear was 68 percent and 80 percent in the left ear. However, the examiner noted that the use of the speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. In its December 2019 Board remand, the Board noted that an updated VA examination and opinion was necessary as the December 2012 examiner was unable to provide an opinion without resorting to speculation, since the examiner found that the claims file does not hearing tests from her time in service to determine if a threshold shift had occurred. In a December 2020 VA opinion, the examiner noted that the Veteran’s claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, after reading the rationale, it appears that the examiner incorrectly selected this statement. The examiner expressed that the most recent hearing examination provided for review was a ratings examination from December 2012 which showed normal hearing for VA purposes in both ears and tinnitus was reported as beginning approximately one year prior. The examiner stated that military and VA hearing examinations in 1975, 1976, 1980, 1984, 2010, 2012 show normal hearing for VA purposes in both ears. The examiner expressed that two hearing examinations in 2012 showed poor patient reliability for word discrimination testing. The examiner expressed that the Veteran’s DD Form 214 shows a military occupational specialty of Stock Clerk which had a low probability for hazardous noise exposure. The examiner noted that tinnitus was not reported during military service and that the Veteran reported twice in 2012 that her tinnitus began in 2010/2011. The examiner stated that hearing examinations during and after service show normal hearing with no significant hearing changes. The examiner opined that there is no evidence of preexisting tinnitus or hearing loss prior to service and there was no report of tinnitus until many years after service, along with no hearing changes. In a January 2021 VA examination, the examiner opined that it is less likely than not the Veteran’s hearing loss incurred in and/or caused by or otherwise related to any period of the Veterans ACDUTRA, and/or INACDUTRA service. The examiner noted that the Veteran reportedly served for 12 years in the Army, with only one year of active duty. The examiner stated that the Veteran’s military occupational specialty while on active duty was Material Store Specialist, which is considered a low probability for hazardous noise exposure. The examiner noted that the Veteran reported noise from firing guns with her right hand, using a grenade launcher, and from the motor pool. The examiner reported that the Veteran had an entrance audiogram in March 1975, which revealed hearing within normal limits from 500-6000 Hz, bilaterally, and a separation audiogram in January 1976 that revealed hearing within normal limits, without significant threshold shifts. The examiner noted that two audiograms in the 1980s reveal hearing loss at 500 Hz. The examiner stated that the most recent hearing test from the VA during 2012 reveals normal hearing at 500 Hz, and only a hearing loss at 6000-8000 Hz., bilaterally. Thus, the examiner opined that this evidence does not support her claim for hearing loss and tinnitus. The examiner stated that the Veteran’s hearing loss is at least as likely due to aging and non-military noise exposure. After review of the December 2020 and January 2021 VA opinions, the Board finds that they are inadequate. First, the Board notes that the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Second, the Board finds that the Veteran’s lay statements were not adequately addressed by both examiners’ opinions. Although the January 2021 VA examiner noted that the Veteran reported noise from firing guns with her right hand, using a grenade launcher, and from the motor pool, the examiner dismissed her statements by relying on normal hearing at separation without significant threshold shifts. As noted above, the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. Third, based on a review of the Veteran’s audiograms, it appears that there was a threshold shift that was not discussed by both VA examiners. Here, there was a threshold shift from entrance in 1975 to separation in 1976. Although the Veteran’s auditory threshold at 500 Hz, appears to have improved with a decrease from 20 decibels to 5 decibels in the right ear and 20 decibels to 0 in the left, the Veteran nonetheless, had an increase threshold shift in the right ear at 1000, 2000, and 3000 Hz. Additionally, the examiners failed to discuss the significant threshold shift in hearing, nearly 4 years after the Veteran’s 1976 separation examination. Thus, on remand, the Veteran should be afforded an updated VA examination that addresses the Veteran’s lay statements and the Veteran’s treatment records. 3. Entitlement to service connection for a right-hand disability is remanded. The Veteran indicated that sometime in late 1975 or early 1976, the Veteran was sent to training at Fort Jackson, South Carolina. See April 2017 Statement in Support of Claim. The Veteran stated that she fractured her hand and that her hand was in a case for 8 weeks. Id. In addition, the Veteran testified that while serving on active duty, the Veteran had to do pushups that caused swelling to her hand. On her VA Form 9, the Veteran expressed that her case was incorrectly decided because VA did not have all the appropriate documents available to make a fair decision. The Veteran stated that she was using the VA medical system for a short time and therefore VA had a great deal of medical information regarding her medical conditions. In December 2019, the Board remanded the Veteran’s claim for service connection for a right-hand disability in order to obtain a VA examination to determine the nature and etiology of her hand disability. Thus, the Veteran was afforded a VA examination in December 2020 The Veteran was diagnosed with bilateral degenerative arthritis of the hands and status post, residual hand fracture of the right hand. The examiner noted that the Veteran’s service treatment records show details of the Veteran complaining of swelling on right hand. The examiner stated that there was no verification of hand fracture with x-ray evidence and no follow up medical visits during service or after discharge for hand swelling. Therefore, the examiner opined that it was less likely than not that any hand disability was caused or aggravated by or otherwise related to any period of the Veterans ACDUTRA, and/or INACDUTRA service. The Board finds the December 2020 VA opinion to be inadequate. The examiner failed to adequately discuss the Veteran’s lay statements. Although, the examiner noted that the Veteran complained of swelling in the right hand, the examiner dismissed the Veteran’s statements and provided a negative opinion based on the lack of x-ray evidence in service. Thus, on remand, a new VA examination is warranted. The matters are REMANDED for the following action: 1. As the Veteran has expressed that her case was incorrectly decided because VA did not have all the appropriate documents available to make a fair decision, the RO should ask the Veteran to identify, and authorize the release of, any outstanding or missing VA and/or private medical records related to her remanded service connection claims. Efforts to obtain those records should be documented and the Veteran should be notified of any failed efforts to obtain them, and allowed the opportunity to provide any missing records. All records received must be associated with the claims file. 2. After associating any records with the claims file, schedule the Veteran for a VA examination in order to determine the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. The record, including a complete copy of this REMAND, must be made available for review. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that any hearing loss and/or tinnitus was caused or aggravated by or otherwise related to any period of the Veteran’s ACDUTRA, and/or INACDUTRA service? The examiner must address the Veteran’s contentions that her hearing loss and tinnitus are a result of working around grenade launchers and being exposed to explosions from ground mines. In addition, the examiner must address whether the Veteran’s hearing loss and tinnitus are a result of working in the motor pool where she was exposed to engine noises from heavy equipment. The examiner should address the threshold shifts noted on the audiograms during service and closely thereafter. However, the Board notes that the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, then a reason for doing so must be provided.   A complete rationale must be provided for the opinion proffered. 3. Schedule the Veteran for a VA examination in order to determine the nature and etiology of the Veteran’s hand disability. The record, including a complete copy of this REMAND, must be made available for review. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that any hand disability was caused or aggravated by or otherwise related to any period of the Veteran’s ACDUTRA, and/or INACDUTRA service? In formulating his or her opinion, the examiner must address the Veteran’s testimony that while serving on active duty, the Veteran had to do pushups that caused swelling to her hand. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, then a reason for doing so must be provided.   A complete rationale must be provided for the opinion proffered. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.