Citation Nr: 21023919 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 10-35 069 DATE: April 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for muscle spasms of bilateral legs and feet is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for obesity, also claimed as hypothyroidism, to include as secondary to exposure to contaminated water at Camp Lejeune is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to Dependents Educational Assistance (DEA) is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed bilateral hearing loss is related to active service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been 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 March 1966 to December 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from multiple rating actions of a Department of Veterans Affairs (VA) Regional Office. The Veteran testified before a Veterans Law Judge in November 2012, and a transcript is of record. In March 2015, the Board remanded the appeal. The remaining issues have been returned to the Board. In February 2021, the Veteran was notified that the VLJ who conducted the November 2012 was no longer employed by the Board and that he had a right to a new hearing. The letter requested that the Veteran respond within 30 days if he desired a new hearing. To date, no such response from the Veteran has been received. As such, the Board will proceed to consider the appeal based on the evidence of record. Entitlement to service connection for bilateral hearing loss is granted. The Veteran asserts that his current hearing loss is related to active duty. His reported noise exposure included commercial and military aircraft during takeoff and landing, live rounds from weapons, and the rifle range, without the benefit of ear protection. He reported that, in the Marines, he was discouraged from reporting any medical problems unless he was “dying.” Service treatment records do not reflect complaints of, or treatment for, hearing loss. There is no separation audiogram. However, the Board finds that the hazardous noise exposure is consistent with the facts and circumstances of the Veteran's service. As such, the Board concedes that the Veteran sustained acoustic trauma during active service. Post-service, an April 2007 VA treatment record noted decreased hearing. The Veteran stated that his hearing aid was 15 years old, and that he was not wearing it because it “gets a lot of background noise.” At an April 2007 VA audiology consultation, the Veteran reported significant noise exposure (small explosives) during military service. An audiogram indicated a moderate sensorineural hearing loss in the right ear and a severe sensorineural hearing loss in the left ear. Following a May 2008 VA audiological examination in connection with the Veteran’s claim for service connection, the VA examiner stated that “without audiometric records from when this veteran was discharged from the military, I cannot assess the relationship between his [hearing loss] and his military noise exposure [without] resorting to mere speculation.” At an October 2016 VA examination, the Veteran stated that his hearing loss was noticeable when he left the service. The examiner also stated that he could not provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation. The examiner acknowledged that the Veteran is competent to testify as to the nature, onset, and circumstances of his hearing loss. However, the examiner did not concede noise exposure, noting that according to an Institute of Medicine 2006 study, the data is not sufficient to estimate cumulative noise exposure over the course of service for individuals or subgroups. The examiner further reasoned that without a separation audiogram, it is nearly impossible to determine whether hearing loss detected by audiometric testing later in life is the result of noise exposure during military service. Based on the foregoing, the Board finds that service connection for bilateral hearing loss is warranted. The Board acknowledges that the VA examiners were unable to provide a medical opinion regarding the etiology of the Veteran's bilateral hearing loss without resorting to speculation. This was largely due to the lack of a separation audiogram. Additionally, the October 2016 VA examiner stated that it was not possible to quantify the Veteran’s in-service noise exposure. However, as noted above, the Board has conceded in-service noise exposure. As such, the opinions have little probative value. Additionally, when the entire record is reviewed collectively, the Board finds that, the evidence both for and against the claim is in relative equipoise. That is, the evidence weighing in favor of the claim is equally weighted against the evidence suggesting the possibility of some other etiology. Here, the Veteran has provided competent and credible evidence of his observable symptoms and his level of noise exposure during service. He has also stated that he noticed a decline in his hearing acuity after service. Thus, when all doubt is resolved in favor of the Veteran, the Board finds that the criteria for service connection for hearing loss are more nearly approximated. Significantly, a discharge audiogram is not available at no fault of the Veteran, and there is no medical evidence that specifically opines against the claim. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for bilateral hearing loss 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 granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for muscle spasms of bilateral legs and feet is remanded. The Veteran asserts that the muscle spasms of his legs and feet are related to service or secondary to service-connected hammertoes. The October 2016 VA examiner opined that the Veteran’s muscle spasms “are not aggravated by service,” reasoning that the Veteran marked “Yes” to a history of cramps in legs on his February 1966 enlistment examination. The Board notes that a Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 C.F.R. § 3.304(b)(1). However, the recording of such a history during the entrance examination will be considered, together with all other material evidence, in determinations as to inception as to the disability at issue. Id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). Consequently, an addendum opinion that adequately addresses the presumption of soundness is required. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities is remanded. The Veteran asserts that his hypertension is caused or aggravated by his service-connected unspecified depressive disorder or physical disabilities. The October 2016 VA examiner opined that “there is nothing objective in his medical record that would indicate that PTSD and his [service-connected] foot and ankle conditions have chronically worsened or have permanently increased the severity of his hypertension.” The Board notes that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Consequently, an addendum opinion that adequately addresses secondary service connection is required. 3. Entitlement to service connection for obesity, also claimed as hypothyroidism, to include as secondary to exposure to contaminated water at Camp Lejeune is remanded. The Veteran asserts that his obesity is related to a thyroid condition that was caused by his exposure to contaminated water at Camp Lejeune. See November 2012 Board Hearing Transcript. The October 2016 VA examiner only addressed whether the Veteran’s obesity is related to his service-connected disabilities. The Board notes that an October 2018 treatment record reflects that the Veteran has a thyroid nodule. In light of the foregoing, the AOJ should obtain an addendum opinion that addresses the Veteran’s theory of service connection. 4. Entitlement to service connection for GERD is remanded. The Veteran asserts that his GERD is caused or aggravated by his service-connected psychiatric and physical disabilities. See November 2012 Board Hearing Transcript. The October 2016 VA examiner only addressed whether the Veteran’s GERD is related to service. In light of the foregoing, the AOJ should obtain an addendum opinion that addresses secondary service connection. 5. Entitlement to TDIU is remanded. 6. Entitlement to DEA is remanded. The claims for TDIU and DEA are intertwined with the service connection claims being remanded, and to the rating assigned to the now service-connected bilateral hearing loss. Consequently, a remand is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the Veteran’s claimed muscle spasms of the lower legs and feet. The examiner must review the record. Then, the examiner must render the following opinions, supported by rationale: (a.) Did the Veteran’s muscle spasms of the lower legs and feet clearly and unmistakably preexist service? (b.) If the muscle spasms clearly and unmistakably preexisted service, were the Veteran’s muscle spasms of the lower legs and feet clearly and unmistakably not aggravated by active service? (c.) If the muscle spasms did NOT clearly and unmistakably preexist service, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s muscle spasms of the lower legs and feet are etiologically related to active duty? 2. Obtain an addendum opinion regarding the Veteran’s claimed hypertension. The examiner must review the record. Then, the examiner must opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension is caused or aggravated by any service-connected disabilities. Specifically, the examiner must address whether the hypertension was worsened by any service-connected disability. 3. Obtain an addendum opinion regarding the Veteran’s claimed obesity. Then, the examiner must opine as to whether the Veteran’s obesity is at least as likely as not (a 50 percent probability or greater) caused by any exposure to contaminated water at Camp Lejeune. Specifically, the examiner should address the Veteran’s contention that his exposure to contaminated water caused hypothyroidism. (Continued on the next page)   4. Obtain an addendum opinion regarding the Veteran’s claimed GERD. The examiner must review the record. Then, the examiner must opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s GERD is caused or aggravated by any service-connected disabilities. Specifically, the examiner must address whether the GERD was worsened by any service-connected disability. 5. Then, readjudicate the matters remaining on appeal. If any decision remains adverse to the Veteran, issue a supplemental statement of the case. The case should then be returned to the Board. RICHARD K. KETTLER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.