Citation Nr: 21026400 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-30 079 DATE: May 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for headaches, to include as secondary to gulf war syndrome is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to a compensable rating for a residual scar of the left hand, index and middle finger is remanded. FINDING OF FACT The Veteran does not have hearing loss for VA disability compensation purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1986 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As to the claim for a compensable rating for his service-connected scar, the Veteran testified at a Regional Office in January 2015. As to all issues, in February 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. The appeal was previously before the Board in April 2020, and all issues reflected on the title page were remanded for further evidentiary 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; 38 C.F.R. §§ 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303(d). Entitlement to service connection for bilateral hearing loss. At the outset, the Board concedes that the Veteran had in-service noise exposure as his military occupational specialty was that of a marine electrician. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. In-service audiograms, to include those performed in July 1986, March 1987, March 1988, April 1989, and July 1989, do not indicate bilateral hearing loss for VA purposes. Also, despite the Veteran's complaints of diminished hearing, the post-service medical evidence reflects that the Veteran does not have hearing loss disability of either ear for VA disability benefits purposes. Specifically, the Veteran was afforded a VA examination in October 2020, at which time he had a Maryland CNC speech recognition score of 96 percent in the right ear and 98 percent in the left ear. The examination report also reflects that the Veteran did not have auditory thresholds of 26 decibels or greater in at least three frequencies for either ear, or auditory threshold in excess of 40 decibels in either ear. Similarly, another VA audiological evaluation, to include on examination in January 2015, showed that the Veteran did not have sufficient hearing loss in either ear to meet the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered a disability by VA. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). Again, the Board acknowledges the Veteran's noise exposure during service and his assertions of difficulty hearing. Nonetheless, the Board notes that despite the Veteran's complaints, the Veteran did not have auditory thresholds of 26 decibels or greater in at least three frequencies for either ear, or auditory threshold in excess of 40 decibels in either ear at any time. While the Veteran is competent to report a decrease in hearing acuity, the results of the audiometric examination are controlling. For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for a bilateral hearing loss disability. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. REASONS FOR REMAND Regrettably, another remand is necessary prior to adjudicating the Veteran's claim as there has not been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for headaches, to include as secondary to Gulf War syndrome. The Veteran contends that he has a headache condition that is due to service. The Board remanded the claim in April 2020, at which time the Board requested an etiology opinion, with consideration of the Veteran's lay statements of record. During the February 2020 hearing, the Veteran testified that he started experiencing headaches while stationed in the Gulf, noting that he sailed through oil rigs and inhaled ash. He also stated that the tension headaches continued and currently occur on a biweekly basis. In September 2020, the Veteran underwent a VA headache examination. The September 2020 VA examiner opined that the Veteran's condition was less likely than not due to service or to possible toxic exposures while in Southwest Asia. The examiner rationed that there was no evidence of a chronic headache condition while in service and that the Veteran's separation examination was negative of a finding of frequent, severe headaches. The examiner also reasoned that there was no evidence of care until the claim filing and that headache conditions due to environmental exposures likely manifest at the time of such exposure or proximate to them. The Board finds that an addendum opinion to the September 2020 VA opinion must be obtained because it is inadequate in that the examiner relied on an inaccurate premise and did not substantially comply with the Board's April 2020 remand directives. Specifically, the examiner noted that there was no evidence of a chronic headache condition in service; however, the examiner did not consider the Veteran's in-service complaints (dated March 1993, February 1994, and December 1994) of headaches. Again, the examiner did not appear to consider the Veteran's statements regarding the onset of his headaches in service and continuity of symptoms. 2. Entitlement to service connection for a left knee disability. The Veteran contends that he has a left knee disability that is due to service. The Board remanded the claim in April 2020, at which time the Board requested that the Veteran undergo a VA examination to determine the nature and etiology of his claimed condition, with consideration of the Veteran's lay statements of record. During the April 2020 hearing, the Veteran also testified that his knee problem stemmed from an in-service fall down the steps. The Veteran stated that he had to wear a brace and was hospitalized. The Veteran also testified that he had knee problems ever since. The Veteran further noted that following service, he did not suffer from any acute injuries, but that he worked on a shipyard with steel and went up and down stairs. In October 2020, the Veteran underwent a VA knee examination, at which time the examiner noted a diagnosis of bilateral degenerative arthritis. At the time of the examination, the Veteran reported that in 1993, he fell down steps, was taken to the emergency room, and was placed in a leg brace for four to six months. The Veteran reported that his pain had worsened and that his symptoms include pain, swelling, locking, popping, and soreness. The examiner opined that it was less likely than not that the Veteran's left knee disorder was due to service. The examiner rationed that the Veteran's "chronic previous diagnosis did not relate to the left knee" and that a diagnosis was not rendered until 2013. The examiner also noted that the Veteran's objective examination was normal and that the Veteran's symptoms were only subjective. The examiner also noted that while the Veteran had other chronic issues, it did not appear to have a direct correlation to service. The Board finds that the October 2020 VA opinion is inadequate as the examiner did not substantially comply with the Board's remand directives. Here, the examiner failed to address the Veteran's lay statements as to continuity of symptoms in forming the opinion. Also, the examiner did not discuss, as the Board had requested, the Veteran's in-service treatment for left knee injuries. In light of these deficiencies, an additional opinion addressing whether the Veteran's left knee condition is related to service, to include as due to the in-service complaints should be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board additionally notes that it is unclear why the examiner reported a left knee diagnosis upon examination, but then stated that the Veteran's objective examination was normal and that complaints were only subjective. This discrepancy should also be addressed upon remand. 3. Entitlement to a compensable rating for residual scar of the left hand, index and middle finger. In a February 2020 hearing, the Veteran testified that his service-connected residual scar of the left hand, index and middle finger had worsened. The Board remanded the claim in April 2020 for want of a VA examination to determine the severity of the Veteran's scar. In October 2020, the Veteran underwent a VA scars examination. At the time of the examination, the Veteran reported that his scar was a result of an in-service accident. The October 2020 VA examiner stated that the Veteran's sole residual scar of the left hand, index and middle finger was well approximated and well healed. The examiner reported that the scar measured 4.0 centimeters in length and 0.1 centimeters in width. The examiner determined that the scar did not result in limitation of function, to include limitation of motion. The examiner also noted that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms associated with the scar and did not impact the Veteran's ability to work. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that the October 2020 VA opinion is inadequate because the examiner did not state whether the Veteran's scar was tender to palpation or if it had underlying soft tissue damage. It is also unclear whether the Veteran's scar was unstable as the examiner did not determine stability on inspection. Additionally, there is no indication that the examiner considered the Veteran's statements relating to functional impact, to specifically include his statement regarding a limitation of motion. On remand, the Veteran should be scheduled for a new examination. The examiner should specifically note whether the Veteran's scar is tender to palpation, unstable, or if there is underlying soft tissue damage, with consideration of the Veteran's lay statements of record. The matters are REMANDED for the following action: 1. Obtain addendum opinions, from clinicians who have never examined the Veteran, to determine the nature and etiology of his headache and left knee disabilities. The claims folder and this remand must be made available to the examiners for review, and the examination reports must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. 2. HEADACHES: Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a headache disability that was incurred in service, or is otherwise related to service, to include service in Southeast Asia. All lay statements of record should be considered in the rendered opinions. If it is determined that the Veteran's headache disorder did not have an onset during his military service or was otherwise not causally or etiologically related to service, the examiner must provide an opinion as to the more likely etiology. **The examiner must consider Veteran's in-service complaints of headaches during service (dated March 1993, February 1994, and December 1994) and discuss whether the Veteran's in-service headaches were early manifestations of his current headaches. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. LEFT KNEE: a) Identify all currently diagnosed left knee disabilities, to include, pain with functional impairment. b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any identified left knee disability was incurred in service, or is otherwise related to service, to include service in Southeast Asia. If it is determined that the Veteran's knee disorder did not have an onset during his military service or was otherwise not causally or etiologically related to service, the examiner must provide an opinion as to the more likely etiology. **The examiner must consider the evidence of treatment of the Veteran's left knee in service related to a basketball injury, a fall down the steps, and his lay statements as to onset and continuity of symptoms. **The examiner is also advised that the Veteran was previously diagnosed with various left knee disorders, to include a small enthesophyte, left patella (August 2012 VA examination); seronegative polyarthritis (2012 private treatment records); and left knee arthritis with abnormal range of motion with pain that causes functional loss (November 2016 VA examination). 3. Next, schedule the Veteran for a VA examination, from a clinician who has never examined the Veteran, to determine the current severity of his service-connected scars of the left index and middle fingers. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. All pertinent symptomatology and findings should be reported in detail. **Specifically, the examiner must note whether the Veteran's scar is tender to palpation, unstable, and/or if there is underlying soft tissue damage, with consideration of the Veteran's lay statements of record. 4. Then, re-adjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson, 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.