Citation Nr: 21022160 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-31 350 DATE: ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an upper respiratory disability is remanded. Entitlement to service connection for a traumatic brain injury (TBI), to include residuals of such, is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the onset of his bilateral hearing loss disability was during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army Reserves, with periods of active service from January 1986 to May 1986, December 1990 to May 1991, December 2003 to August 2005, November 2008 to January 2010, March 2010 to September 2011. The Veteran’s decorations include a Combat Action Badge (CAB). This case comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Service Connection – Bilateral Hearing Loss The Veteran asserts that his bilateral hearing loss is causally related to his active service. Specifically, the Veteran asserts that he was exposed to hazardous noise as a result of mortar explosions while deployed to Iraq. At the outset, the Board notes that the Veteran’s personnel records reveal that he received a CAB for a period of service from February 2004 to January 2005. The CAB was awarded due to the Veteran being subjected to an enemy attack that involved 60mm and 82mm mortars, one RPG, and two rocket attacks. As such, the Board concedes acoustic trauma during a period of the Veteran’s active service. The Veteran’s April 1985 audiometric results revealed normal hearing from 500 Hertz to 4000 Hertz in both ears. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran’s subsequent treatment records from the Reserves indicated worsening hearing in his right ear through December 2003. Audiograms from December 2003 and June 2005 revealed that the Veteran had a hearing loss disability for VA purposes in both ears. See 38 C.F.R. § 3.385. Thereafter, a November 2008 audiogram revealed that the Veteran’s hearing in both ears had worsened, since the June 2005 audiogram, and he was diagnosed with moderate bilateral sensorineural hearing loss. Additionally, in November 2009, the Veteran received a permanent profile due to his hearing meeting the H-1 standard. At that time, it was noted that the Veteran’s pre-deployment hearing was at an H-3, but had increased to an H-1, and that he had acoustic trauma from guns, explosions, machinery, and engines. In April 2017, the Veteran was afforded a VA examination for hearing loss and tinnitus. At that time, the Veteran reported that he was exposed to generators, small arms fire, tanks, and explosions during his deployments from 1991 through 2011. The Veteran also reported that he wore hearing protection when he was able to. The Veteran’s audiological results revealed that he had a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. However, the VA examiner ultimately assessed that the Veteran’s hearing loss was not at least as likely as not caused by or the result of an event in his military service. The VA examiner reasoned that the Veteran had a significant decrease that occurred between 1996 and 2003, a period of his active duty, but that noise exposure as a civilian in his recreational activities may have caused that shift. The VA examiner also stated that the Veteran’s hearing loss did not shift significantly during his periods of active duty. Further, the VA examiner also noted that noise induced hearing loss does not have a delayed onset and referred to the 2006 Institute of Medicine (IOM) study to support her conclusion. The Board finds the April 2017 VA examination inadequate for adjudication purposes. In that regard, the VA examiner based their conclusion on inaccurate facts pertaining the Veteran’s documented hearing loss after his deployments; failed to incorporate the Veteran’s statements regarding the onset and continuity of his hearing loss; and provided no rationale to support the conclusion of recreational activities causing the Veteran’s hearing loss. Additionally, the VA examiner overstated the findings of the 2006 IOM study, as a complete reading of that study shows that it was not conclusive. As the April 2017 VA opinion is inadequate, it cannot serve as the basis for a denial. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify decreased hearing acuity, and his statements have been found to be credible. In sum, the Board concedes that the Veteran sustained acoustic trauma during a period of his active service. Moreover, the Veteran has competently and credibly reported decreased hearing acuity since his active service. The Veteran has a current diagnosis of bilateral hearing loss disability for VA purposes, and there are no probative medical opinions against the claim. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection – Low Back Disability In regard to the Veteran’s claimed low back disability, during the Veteran’s July 2020 Board hearing he stated that his back condition was treated during the service, and that he still occasionally saw a chiropractor. The Veteran also presented a buddy statement where his former NCO attested to witnessing his back pain in September 2010. Specifically, the soldier stated that the Veteran’s back pain was evidenced by the way he walked, repositioned himself when standing, slowly arose from the sitting position, and the painful look on his face. The Board notes that the only in-service treatment record revealed complaint of and treatment for upper back pain. In April 2017, the Veteran was afforded a VA examination for the thoracolumbar spine. At that time, the Veteran reported that he had lower back pain with occasional sciatica into the left lower extremity. The VA examiner noted that the Veteran had a current diagnosis of degenerative disc disease of the thoracolumbar spine. The VA examiner also noted that the Veteran’s April 2017 MRI revealed grade one spondylolisthesis of L4 over L5. However, the VA examiner opined that the Veteran’s diagnosis was less likely than not due to upper back pain during service. The VA examiner reasoned that there was no biomechanical connection between a thoracic or upper back condition and the development of a lumbar spine condition. The Board finds that the April 2017 VA medical opinion is inadequate for adjudication purposes. In that regard, the VA examiner failed to include the Veteran and his former NCO’s lay statements pertaining to the onset and continuity of symptoms of his low back pain. The Board notes that the Veteran is competent to report the observable symptoms of his low back disability, and his former NCO is competent to report the observable physical manifestations resulting from his symptoms. Accordingly, the Board finds that a VA addendum opinion is warranted to address the lay statements of record pertaining to the onset and continuity of symptomatology of the Veteran’s low back pain. Service Connection – Upper Respiratory Disability The Board has recharacterized the Veteran’s claim of rhinitis to more accurately reflect the symptoms presented by the evidence of record. In regard to the Veteran’s upper respiratory disability, the Veteran’s treatment records, from October 2009, reveal multiple complaints of a cough, chest congestion, sore throat, and nasal discharge. Those complaints were collectively diagnosed as bronchitis and a common cold. During his July 2020 Board hearing, the Veteran stated that the onset of his symptoms was upon returning from Afghanistan in 2009. The Veteran also testified that his symptoms were manifested by severe nose running and itching, and post-nasal drip that was associated with continuous coughing. The Veteran has not yet been afforded a VA examination. As such, the Board finds that a VA examination is warranted to determine the nature and etiology of any currently present upper respiratory disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection – TBI In regard to the Veteran’s TBI, during his July 2020 Board hearing, the Veteran testified that he was concussed after the mortar attacks that occurred during his deployment to Iraq. Further, during his January 2015 VA examination for PTSD, the Veteran reported that he presented for treatment after sustaining a head injury during combat. The Veteran has not yet been afforded a VA examination to determine whether he has current residuals of an in-service TBI. As such, the Board finds that a VA examination is warranted to determine the nature and etiology of any currently present residuals of TBI. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection – Sleep Apnea In regard to the Veteran’s sleep apnea, during his July 2020 Board hearing, the Veteran testified that he had a current diagnosis of sleep apnea and had received a CPAP after a December 2015 sleep study. The Veteran also testified that his wife witnessed him stopping breathing and that in 2015, he was diagnosed with arterial fibrillation because doctors felt it was partially related to his sleep apnea. The Veteran has not yet been afforded a VA examination. As such, the Board finds that a VA examination is warranted to determine the nature and etiology of any currently present sleep apnea. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claim file. 2. Then, schedule the Veteran for an examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present back disability. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present back disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider the Veteran’s lay statements regarding the onset and continuity of his back pain. A detailed rationale must be provided for all opinions expressed. 3. Then, schedule the Veteran for an examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present upper respiratory disability. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present upper respiratory disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider the Veteran’s lay statements regarding the onset and continuity of his upper respiratory symptoms. A detailed rationale must be provided for all opinions expressed. 4. Then, schedule the Veteran for an examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present residuals of a TBI. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present residuals of TBI had their onset during the Veteran’s active service, or are otherwise etiologically related to such service. In forming the opinion, the examiner must consider the Veteran’s lay statements regarding in-service TBIs, and the onset and continuity of any residual symptoms of such. A detailed rationale must be provided for all opinions expressed. 5. Then, schedule the Veteran for an examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present sleep apnea. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present sleep apnea had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider that the Veteran’s lay statements regarding the onset and continuity of his symptoms. A detailed rationale must be provided for all opinions expressed. 6. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 7. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, 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.