Citation Nr: 21026177 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 13-27 034 DATE: April 30, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for headaches, to include as secondary to a right eye disability is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his left ear hearing loss is related to noise exposure during active duty service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to April 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The Board previously remanded issues of entitlement to service connection for bilateral hearing loss, a right eye disability, and headaches in January 2018 for further development. The requested development as to the claim adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In October 2019, the Veteran was awarded service connection for right ear hearing loss. Therefore, entitlement to service connection for left ear hearing loss remains on appeal. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for left ear hearing loss is granted. The Veteran is seeking to establish service connection for left ear hearing loss. He contends that his left ear hearing loss is related to hazardous noise exposure during service. After a review of the entire evidentiary record and in light of the applicable legal criteria, the Board affords the Veteran reasonable doubt and grants service connection for left ear hearing loss. With regard to a present disability, a September 2018 VA examination indicates that the Veteran has a diagnosis of left ear sensorineural hearing loss for VA purposes. As the Veteran has a current diagnosis, the first element of service connection is met. With regard to an in-service injury, the Board finds that there is credible evidence of in-service noise exposure, as VA has been awarded the Veteran service connection for tinnitus and right ear hearing loss. As such, the second element of service connection is met. As for the third element of service connection, evidence of a nexus between the Veteran’s left ear hearing loss and service, the Board notes the evidence of record consists of credible statements from the Veteran and negative and positive medical opinions regarding the etiology of the Veteran’s left ear hearing loss. In the October 2017 Board hearing, the Veteran testified that during a basic training exercise, a fragmentation hand grenade landed just outside a hut where he was positioned. After the explosion, the Veteran was dizzy and discombobulated. He had ringing in his ears for days and had trouble hearing. The Veteran testified that he had trouble with his hearing since service and had not experienced acoustic trauma since his separation. In an April 2018 statement, Dr. F. G., a private physician, opined that the Veteran’s left ear hearing loss was due to high intensity noise documented in military records. The Veteran was afforded a VA examination for his hearing loss in September 2018, in which the VA examiner opined that the Veteran’s left ear hearing loss was less likely than not related to service. The examiner explained that audiological examinations during service showed normal hearing in the left ear with no significant threshold shifts when compared to the Veteran’s entrance exam. Therefore, the examiner determined that the Veteran’s left ear hearing loss was more likely impacted by civilian noise exposure, presbycusis, and/or some other etiology. The Board finds that the balance of favorable and unfavorable evidence is in equipoise; thus, the Board resolves doubt in the Veteran’s favor and finds that the third element of service connection has been met. As such, the Board finds that the Veteran’s left ear hearing loss is etiologically related service and the claim of entitlement to service connection for left ear hearing loss is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right eye disability is remanded. The Veteran is seeking to establish service connection for a right eye disability. He contends that his right eye disability is etiologically related to an in-service incident where his helmet lodged into his eye. Every veteran is presumed to be in sound condition upon entry except as to any injury or disease noted at the time of enlistment. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In determining whether a specific condition is “noted” on entry, the Board’s analysis is limited to whether the condition was recorded in the enlistment examination report. 38 C.F.R. § 3.304(b). Here, the Veteran’s December 1980 Report of Medical Examination noted defective distant vision with distant visual acuity 20/25 upon entry into service. The Board therefore finds that the presumption of soundness, set forth in 38 U.S.C. § 1111, does not extend to the Veteran’s right eye disability. Therefore, the issue becomes a question of aggravation. Under 38 U.S.C. § 1153 and 38 C.F.R. § 3.306, a preexisting disability will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. Aggravation will be rebuttably presumed where there is affirmative evidence of in-service worsening. Conversely, aggravation will not be conceded where the preexisting disability underwent no discernible increase in severity in service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Mere “temporary or intermittent flare-ups” of a preexisting condition are generally insufficient to show that in-service worsening has occurred. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). However, the degree of in-service worsening need not be so great as to warrant compensation in order for the presumption of aggravation to attach. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Notably, once the presumption of aggravation does attach, the government bears the burden of showing, by clear and unmistakable evidence, “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). In his March 1983 Report of Medical History upon separation from service, the Veteran endorsed eye trouble and noted “red vision” in his right eye. Further, vision in the Veteran’s right eye (which had been documented as 20/25 upon entrance) was now recorded as 20/50 on a March 1983 Report of Medical Examination. The Board finds that the evidence indicates that the Veteran’s right eye disability may have increased in severity during service. While the Veteran was afforded a VA examination in September 2018, the question of aggravation was not addressed and therefore, the examination is inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Remand is warranted to determine whether there is clear and unmistakable evidence that the Veteran’s right eye disability was not aggravated beyond normal progression during active duty service. 2. Entitlement to service connection for headaches, to include as secondary to a right eye disability is remanded. The decision on the issue of entitlement to service connection for a right eye disability may impact upon the Veteran’s claim for headaches. Therefore, the Board finds these issues to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the Board notes that there is evidence that the Veteran experienced an in-service event that may have caused his current headaches. As noted above, in the October 2017 Board hearing, the Veteran testified that during training, his helmet got caught in barbed wire and lodged over his eye when he tried to pull his helmet off. The Veteran stated he has experienced headaches since this incident. In October 2010, VA received a statement from Mr. M. B., the Veteran’s former military colleague. Mr. M. B. stated that he had participated in a night offensive and defensive training with the Veteran where they were instructed to crawl under barbed wire while live fire was being shot overhead. Mr. M. B. stated that after he had completed the obstacle course, he observed the Veteran’s helmet get stuck in barbed wire while crawling under a fence. The Veteran was ordered to keep moving and once he arrived at the other side of the course, Mr. M. B. assisted the Veteran with removing his helmet. It was jammed over the right side of the Veteran’s face and into his eye. Mr. M. B. recalled that one or two days later, the Veteran stated that he was having headaches all the time. Finally, on his March 1983 Report of Medical History upon separation from service, the Veteran endorsed “frequent or severe headaches.” The Board notes that the Veteran has not been provided with a VA examination specifically for his headaches to determine if they are etiologically linked to active duty. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the Veteran has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. As there is evidence of a current disability and some evidence of a link to service, the Board finds that the Veteran should be afforded a VA examination to determine if his headaches are etiologically linked to active duty. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the September 2018 VA examination, or another appropriate medical professional if the examiner is unavailable. The electronic claims file must be reviewed by the examiner. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After reviewing the claims file, the examiner should answer the following questions: a) Was the Veteran’s right eye disability at least as likely as not (a probability of 50 percent or greater) aggravated (i.e., permanently increased in severity) during active service? A complete rationale for the opinion must be provided. b) Was any increase clearly and unmistakably due to the natural progression of the disease? A complete rationale for the opinion must be provided. In forming the requested opinions, the examiner is asked to address: (i) the Veteran’s reported in-service incident where his helmet lodged in his eye, causing it to roll back; (ii) the Veteran’s vision documented as 20/25 upon enlistment and 20/50 upon separation from service; and (iii) the Veteran’s reports of red vision upon separation from service. Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service. 2. Schedule the Veteran for a VA examination for his headaches. The examiner must review the claims file. 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 opinion(s) below. The examiner is asked to provide a response to the following: Are the Veteran’s headaches at least as likely as not (a probability of 50 percent or greater) related to active service? A complete rationale for the opinion must be provided. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? (Continued on the next page)   3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his attorney a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.