Citation Nr: 21023090 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-01 715 DATE: April 20, 2021 ORDER The claim for service connection for bilateral hearing loss is denied. REMANDED The claim for service connection for lumbar spine disability is remanded. The claim for service connection for migraine headaches is remanded. The claim for service connection for vertigo is remanded. FINDING OF FACT The preponderance of the evidence is against finding that bilateral hearing loss began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to February 1975. The Board remanded the current claim in July 2015 and February 2020 for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he incurred bilateral hearing loss as a result of in-service noise exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and evidence shows that he was exposed to noise exposure occurred, the preponderance of the evidence weighs against finding that the Veteran’s hearing loss disability began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records demonstrate hearing acuity within normal limits upon the December 1967 enlistment examination and July 1974 separation examination and audiograms documented during service also revealed hearing acuity within normal limits. His service records are also negative for complaints, treatment, or diagnosis of hearing loss. A June 1975 VA examination revealed that the Veteran’s hearing thresholds were negative for bilateral hearing loss at that time. Indeed, an April 1975 VA examiner stated that his hearing thresholds at that examination, conducted two months post-discharge, demonstrated “excellent” hearing bilaterally. The first mention of hearing loss post-discharge in the claims file is a December 2009 VA audiology treatment note, about 35 years post-discharge. While the Veteran is competent to report having experienced symptoms of a loss of hearing acuity since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a bilateral hearing loss disability according VA regulation. The issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, an April 2011 VA examiner opined that the Veteran’s bilateral hearing loss is not at least as likely as not related to in-service noise exposure as his hearing thresholds were within normal limits upon entrance and separation from service as well as eight months post-discharge and service treatment records are negative for any indication of qualifying diagnosis of hearing loss. In a November 2015 addendum opinion, the examiner noted that although there was a threshold shift noted during April and May 1970 audiograms, that shift was temporary and the Veteran’s hearing returned to within normal limits at the time of his discharge and even two months thereafter. The examiner explained that temporary threshold shifts, as demonstrated during service in this case, are quite common and hearing acuity generally returns to the original threshold shortly after exposure. As the threshold shifts were not permanent in this case, the examiner concluded that the Veteran’s current bilateral hearing loss is less likely as not related to in-service noise exposure. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A March 2020 VA examiner agreed with the 2011 VA examiner’s etiology opinion on the same bases. The Veteran certainly believes that his hearing loss disability is related to an in-service injury, event, or disease. However, in this case, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge the interaction between multiple organ systems in the body, anatomical relationships, and the interpretation of complicated diagnostic medical testing, which the Veteran has not been shown to possess. Therefore, it is outside his competence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiners in his claim. Given the lack of medical evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran’s current hearing loss and in-service noise exposure. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for lumbar spine disability In July 2015 and February 2020 remand orders, the Board requested that the Veteran’s contentions of in-service onset and continuity of his back symptoms, as well as his differentiation of the back pain he had prior to service and his in-service onset of his current symptoms be considered by an examiner in providing an etiology opinion. The subsequent VA examinations and opinions failed to provide the requested opinion. The Board further notes that the prior opinions regarding whether the back disability clearly and unmistakably pre-existed enlistment and was not aggravated beyond its natural progression during service have so far been inadequate. Specifically, the opinions have asserted that his back disability pre-existed service and was not aggravated during or by service without any rationale. The Board advise that there is no evidence of a back disability actually diagnosed prior to enlistment, as there are only the Veteran’s reports of back pain pre-service and a diagnosed disability was not noted upon enlistment examination. Therefore, the examiner must also provide an opinion as to whether the Veteran’s current back disability clearly and unmistakably pre-existed his military service and, if so, whether it was aggravated beyond the normal progression and this opinion must be supported with a complete rationale with citation to the medical and lay evidence of record. As such, the claim must be remanded to obtain the required opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for migraine headaches 3. Entitlement to service connection for vertigo In the July 2015 and February 2020 remand orders, the Board requested addendum medical opinions with regard to the above issues. In resulting addendum opinions from November 2015, the examiner opined that the Veteran’s vertigo and headaches clearly and unmistakably pre-existed service and were not aggravated by service. The examiner did not provide rationale for why those conditions pre-existed service beyond stating that the conditions were “documented as occurring prior to service per entry examination and other medical records.” The Board notes that neither vertigo nor chronic migraine headaches were noted upon entry to service. The Board found that the examiner’s opinion is based on an inaccurate factual premise and lacks probative value. The substance of the rationale was also found to be insufficient to support the conclusions provided. The Board requested that the examiner specifically address a 1967 report of medical history with regard to vertigo. The examiner did not address the report. The examiner was also instructed to specify the nature of the Veteran’s current headache disability. The examiner stated he could not do so without resort to speculation, merely because recent treatment records did not include treatment for headaches. In the resulting opinions from the 2020 remand, the examiner did not respond with complete rationales and did not take into consideration the evidence the Board noted. As such, the Board requires new addendum opinions from a different examiner than the one who provided the November 2015 and February 2020 VA opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s lumbar spine disabilities. The examiner must opine as to: a) are the Veteran’s current lumbar spine disabilities at least as likely as not related to an in-service event or injury, to include the fall from the wing of a plane? In providing this opinion, the examiner must specifically discuss the Veteran’s contentions that his in-service back pain was different than the back pain he experienced prior to service, began following a fall off of the wing of a plane, and that his back symptoms continued following service until such symptoms were then worsened by a work-related injury. b) did any currently diagnosed back disability clearly and unmistakably pre-exist military service, and if so, was such a disability permanently worsened beyond the natural progression of such disability during or as a result of an injury or event during military service? The examiner is advised that there is no evidence of a back disability actually diagnosed prior to enlistment. The only evidence of back symptoms prior to the Veteran’s enlistment is his report of back pain since childhood made during enlistment. All opinions must be supported with a complete rationale which specifically cites to medical and lay evidence of record. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s lumbar spine disabilities. The examiner must opine as to: a) Are the Veteran’s current migraine headache and vertigo disabilities at least as likely as not related to an in-service event or injury, to include the fall from the wing of a plane and the Veteran’s complaints of and treatment for headaches and dizziness during service? b) Did the currently diagnosed migraine headaches and vertigo disabilities clearly and unmistakably pre-exist military service, and if so, was such a disability permanently worsened beyond the natural progression of such disability during or as a result of an injury or event during military service? The examiner is advised that there is no evidence of a migraine headache or vertigo disability actually diagnosed prior to enlistment. The only evidence of such symptoms prior to the Veteran’s enlistment is his report of headaches or dizziness during enlistment. All opinions must be supported with a complete rationale which specifically cites to medical and lay evidence of record. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. B., 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.