Citation Nr: 21025485 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-50 620 DATE: April 28, 2021 REMANDED The issue of service connection for left ear hearing loss is remanded. The issue of service connection for tinnitus is remanded. The issue of service connection for a right shoulder disability is remanded. The issue of service connection for a left shoulder disability is remanded. The issue of service connection for a low back disability is remanded. The issue of service connection for carpal tunnel syndrome in the right upper extremity is remanded. The issue of service connection for carpal tunnel syndrome the left upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from October 1975 to March 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for left ear hearing loss, tinnitus, right shoulder disability, left shoulder disability, low back disability, and carpal tunnel syndrome of the bilateral upper extremities. Following the May 2013 rating decision, in August 2013, the Veteran submitted a statement suggesting that she disagreed with the May 2013 rating decision, as she requested reconsideration of the decision and provided statements as to why service connection should be warranted for the disabilities that were denied in the May 2013 rating decision. The Board finds that the August 2013 statement constitutes a timely NOD to the May 2013 rating decision, as it expressed dissatisfaction with the May 2013 rating decision within one year of receipt of the notification of that decision. See 38 C.F.R. § 20.101 (2014); cf. 38 C.F.R. § 20.101 (effective March 24, 2015, VA amended its regulations to provide that VA will accept an expression of dissatisfaction or disagreement with an adjudicative determination by the RO as a NOD only if it is submitted on a standard form, in cases where such a form is provided). Therefore, the service connection claims on appeal will be addressed on the merits. In March 2021, the appellant presented testimony before the undersigned. REASONS FOR REMAND 1. The issue of service connection for left ear hearing loss is remanded. 2. The issue of service connection for tinnitus is remanded. The Veteran claims that her left ear hearing loss and tinnitus are due to in-service noise exposure. See Board hearing transcript (March 2021). Specifically, she reports that she had in-service noise exposure at the shooting range and that she began experiencing left ear hearing loss following firing an M-16. See VA examination report (July 2016). She reported that she went to sick call during service due to left ear hearing loss and pain. She asserts that she began experiencing tinnitus 6 months following her separation from service. See Board hearing transcript (March 2021). The evidence shows that the Veteran’s personnel records include a November 1975 record illustrating that she attended basic combat training. A July 2016 VA hearing loss and tinnitus examination report reflects that the Veteran has current left ear hearing loss for VA purposes. The VA examiner opined that the Veteran’s left ear hearing loss was less likely than not due to her military service. The examiner reasoned that the Veteran’s military service audiological examinations show hearing within normal limits and that her military occupational (MOS) was a personnel records specialist. With respect to the tinnitus, the examiner did not provide an opinion as to whether the Veteran’s tinnitus was related to her military service, but rather found that the Veteran’s tinnitus was a symptom associated with hearing loss. In a September 2020 statement, Dr S.S., the Veteran’s VA treating physician, provided a positive opinion between the Veteran’s left ear hearing loss, tinnitus, and her in-service noise exposure. No rationale for the opinion was provided. For the following reasons, a remand is necessary to obtain a VA opinion to address whether the Veteran’s left ear hearing loss and tinnitus had their onset during ACDUTRA service or whether they are due to her ACDUTRA service. The July 2016 VA opinion is flawed, as the examiner based the opinion on the absence of an in-service hearing disability and did not address the Veteran’s contentions that she experienced in-service left ear hearing loss following firing of a M-16. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, the July 2016 VA examiner did not address whether the Veteran’s tinnitus was the result of an in-service injury or disease during her ACDUTRA service. Also, although the September 2020 physician provided positive nexus opinions between the Veteran’s left ear hearing loss, tinnitus, and her military service, the physician did not provide a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Also, upon remand, outstanding VA treatment records should be obtained, as the Veteran’s VA treatment notes that she sought treatment for her hearing loss and tinnitus in 2008 and the VA treatment records are only current from 2009. 3. The issue of service connection for a right shoulder disability is remanded. 4. The issue of service-connection for a left shoulder disability is remanded. 5. The issue of service connection for a low back disability is remanded. 6. The issue of service connection for carpal tunnel syndrome in the right upper extremity is remanded. 7. The issue of service connection for carpal tunnel syndrome the left upper extremity is remanded. The Veteran asserts that her low back and bilateral shoulder disabilities are due to her ACDUTRA in-service physical training and performing row marches with 80-pound sacks. See Veteran’s notice of disagreement (August 2013). Furthermore, she also attributes her disabilities to a slip and fall that occurred during basic training. She reports that she had low back and shoulder pain during service and did not seek immediate treatment following her separation from ACDUTRA service. With respect to her carpel tunnel syndrome, she claims that her carpal tunnel syndrome is the result of her MOS as a clerk, as it required typing and writing documents. See Veteran’s notice of disagreement (August 2013). She reports that she sought treatment 8 months following her separation from ACDUTRA service. During the Veteran’s hearing, the Veteran testified that she was not diagnosed until after service but was given something to rub on her shoulder and arms by a nurse while she was in service. See Board hearing transcript (March 2021). Compensation is warranted for disability due to personal injury suffered or disease contracted during “active military, naval, or air service.” 38 U.S.C. §§ 1110, 1131. “Active military, naval, or air service” includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a). The Veteran’s service personnel records include an undated individual training record that reflects that the Veteran’s MOS included typing and preparing forms. In a September 2020 statement, Dr. S.S., indicated that the Veteran had been diagnosed as having degenerative facet arthropathy, paresthesia’s in her arms, and carpal tunnel syndrome. Dr. S.S. provided a positive opinion between the Veteran’s low back pain, paresthesia’s in her arms, and her in-service basic training. Additionally, Dr. S.S. provided a positive opinion between the Veteran’s carpal tunnel syndrome and her carrying heavy equipment during service. No rationale for the opinions were provided. See Nieves-Rodriguez, 22 Vet. App. at 04. The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine whether her low back disability, bilateral shoulder disability, or her carpal tunnel syndrome of the upper extremities had their onset in ACDUTRA or whether they are the result of an in-service injury or disease during her ACDUTRA service. As the evidence indicated that the Veteran has current disabilities that may be associated with her ACDUTRA service, a remand is warranted to obtain medical opinions. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records regarding the Veteran’s treatment for her disabilities on appeal, including those specifically following her separation from ACDUTRA service. 2. Refer the claims file to a VA audiologist regarding the Veteran’s claims of service connection for left ear hearing loss and tinnitus. The audiologist should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left ear hearing loss and tinnitus had its/their onset during ACDUTRA service or is otherwise the result of an in-service injury or disease during her ACDUTRA service. The audiologist should address the Veteran’s contentions that she experienced in-service left ear hearing loss following firing of an M-16 during basic combat training. The audiologist should provide a complete rationale for the opinions. 3. Schedule the Veteran for an examination to determine the nature and etiology of her claimed low back disability, bilateral shoulder disability, and carpal tunnel syndrome of the upper extremities. The examiner should review the entire claims file, including the Veteran’s hearing testimony, before answering the following: a. Identity the Veteran’s low back and shoulder disabilities since the date of the Veteran’s claims in January 2012 by (1) diagnosis or (2) functional impairment. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disability (including degenerative facet arthropathy), bilateral shoulder disability (including and paresthesia), and carpal tunnel syndrome of the upper extremities had its/their onset in ACDUTRA or is/are they otherwise related to an in-service injury or disease during to her ACDUTRA service. The examiner should address the Veteran’s contentions that her disabilities are due to her physical training. The examiner should provide a complete rationale for each opinion. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.