Citation Nr: 21024957 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-09 232 DATE: April 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for residuals of a head injury is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for epilepsy as secondary to in-service head injury is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a bilateral hearing loss disability at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1989 to June 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in February 2021. A transcript of that hearing is of record. 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that he has hearing loss caused by his exposure to loud noise during service. 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). The question before the Board is whether the Veteran has a hearing loss 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 the Veteran does not demonstrate hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385, and has not had such demonstrated at any time proximate to, or during, the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). However, not all hearing loss constitutes hearing loss “disability” for VA purposes. To be considered a hearing loss disability for VA purposes, there must be evidence of impaired hearing that meets the criteria of 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The May 2013 VA examination shows some degree of bilateral hearing loss, but does not meet the requirements of 38 C.F.R. § 3.385. Thus not a disability for VA purposes. The Veteran’s VA treatment records similarly do not contain evidence that the hearing loss meets the requirements of 38 C.F.R. § 3.385. Consequently, the Board finds that the Veteran does not have a bilateral hearing loss disability for VA compensation purposes. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and service connection is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a right hip disability is remanded. 3. Entitlement to service connection for residuals of a head injury is remanded. 4. Entitlement to service connection for a right leg disability is remanded. The Board cannot make a fully-informed decision on the right knee, right hip, right leg or head injury claims because no VA examiner has opined whether the Veteran has residual disabilities related to his in-service motorcycle accident. To the extent that an October 2018 VA examination as to headaches may be considered relevant, the Board notes that it does not discuss the motorcycle accident. 5. Entitlement to service connection for a right foot disability is remanded. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran has a right foot disability related to his in-service motorcycle accident or an accident in which his foot was caught underneath the wheels of a weapon skid. 6. Entitlement to service connection for a right hand disability is remanded. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran has a right hand disability that is related to an in-service injury to the tendons of his right hand. The Veteran indicated during his February 2021 hearing that he was hospitalized or otherwise treated at a hospital during service. A remand is required to allow VA to request these potentially relevant records. 7. Entitlement to service connection for epilepsy as secondary to in-service head injury is remanded. In February 2021, the Veteran submitted a VA Form 21-4142 identifying relevant outstanding private treatment records. A remand is required to allow VA to request these records. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran has epilepsy that is related to an in-service motorcycle accident or residuals of any associated head injury. 8. Entitlement to service connection for a right shoulder disability is remanded. The January 2017 VA examination of record is not adequate because it finds that the Veteran’s current right shoulder disability is related to an acute injury that occurred in 2016, without discussing the fact that the Veteran complained of right shoulder pain well before the injury, in a December 2013 VA treatment note. Upon remand, a supplemental opinion should be obtained that considers the complete record. 9. Entitlement to service connection for a low back disability is remanded. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran has a low back disability that is related to an in-service motorcycle accident or the cumulative effects of his job loading heavy explosives. The matters are REMANDED for the following action: 1. Use the VA Form 21-4142 signed by the Veteran in February 2021 and submitted alongside a letter from his private physician Dr. T.O. to make two requests for the authorized records from Dr. T.O. unless it is clear after the first request that a second request would be futile. If an updated form is required, contact the Veteran. 2. Obtain records of any inpatient treatment at Long Beach Naval Hospital in January 1993. Document all requests for information as well as all responses in the claims file. 3. After completion of the above, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and likely etiology of any diagnosed right knee, right foot, right hand, right hip, right leg, right shoulder, and low back disability. The examiner must review the claims file. Based on the examination and review of the record, the examiner must answer the following: (a) Identify all diagnoses related to the right knee, right foot, right hand, right hip, right leg, right shoulder, and low back. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a right knee disability related to service, to include a December 1990 motorcycle accident? (ii) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a right foot disability related to service, to include an accident where his foot got caught underneath a weapons trailer or skid in April 1991? The clinician is advised that the Veteran reported foot trouble in his May 1993 separation report of medical history, although the notation indicated a left foot contusion. (iii) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a right hand disability related to service, to include a January 1993 injury incurred in his home where he sustained a deep laceration involving the extension tendon? (iv) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a right hip disability related to service, to include a December 1990 motorcycle accident? (v) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a right leg disability related to service, to include a December 1990 motorcycle accident? (vi) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a right shoulder disability related to service, to include a December 1990 motorcycle accident, and two incidents discussed in the February 2021 hearing testimony in which i) a 250-pound bomb he was loading onto an aircraft slipped and when he caught it at a severe angle the weight pulled on his right shoulder, and ii) he was on a plane that turned quickly and blew him onto the flight deck? The clinician is advised that he complained of right shoulder pain in a December 2013 VA treatment note, years before the August 2016 injury to which the January 2017 examiner attributed the Veteran’s right shoulder disability. (vii) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a low back disability that is related to service, to include the December 1990 motorcycle accident and the cumulative effects of his job responsibilities in service loading heavy explosives? The opinions offered must be supported by a complete rationale. 4. Schedule the Veteran for a VA examination with an appropriate clinical to determine the nature and likely etiology of the claimed residuals of a head injury and epilepsy as secondary to residuals of a head injury. Copies of all pertinent records must be made available to the examiner for review. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran has any residuals of a head injury that are related to a December 1990 motorcycle accident, or an incident discussed in the February 2021 hearing in which the Veteran was on an aircraft that turned abruptly causing him to be blown onto the flight deck? (ii) Is it at least as likely as not (50 percent or greater probability) that the Veteran has epilepsy that is related to a December 1990 motorcycle accident and any related head injury? (iii) If the Veteran’s epilepsy is not directly related to the in-service motorcycle accident, is it at least as likely as not (50 percent or greater probability) proximately due to any residuals of a head injury, or aggravated (defined as any increase in disability) by any residuals of a head injury? Each opinion offered must be supported by a complete rationale. 5. The AOJ must confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.