Citation Nr: 21026740 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-40 757 DATE: May 3, 2021 ORDER Service connection for right ear hearing loss is granted. Service connection for degenerative disc disease is granted REMANDED Entitlement to a compensable rating for left ear hearing loss is remanded. Entitlement to a compensable rating for the service-connected right foot disability is remanded. Entitlement to service connection for a gastrointestinal disability, claimed as residuals of hiatal hernia, is remanded. Entitlement to service connection for a left wrist disability, claimed as both residuals of a left wrist injury and carpal tunnel, is remanded. FINDINGS OF FACT 1. The Veteran's right ear hearing loss is at least as likely as not related to noise exposure in service. 2. The Veteran has experienced continuity of symptomatology related to his chronic spine disability since service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to service connection for degenerative disc disease are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) from a January 2015 rating decision. The Veteran testified at a Board hearing in March 2021. 1. Entitlement to service connection for right ear hearing loss. The Veteran is already in effect for left ear hearing loss. At issue is whether he is also entitled to service connection for right ear hearing loss. A November 2014 VA examination shows a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. A current disability is established by competent evidence. The November 2014 VA examiner opined that the Veteran's right ear hearing loss is less likely than not related to noise exposure in service. The examiner's rationale was that the Veteran had normal hearing in his right ear at separation form service; in contrast, he had mild high frequency hearing loss in his left ear. The Veteran's military occupational specialty (MOS) was security specialist. Regarding noise exposure, at his Board hearing he testified that his unit was tasked with guarding B-52 aircrafts at a weapons storage, adding that he served near the planes and had unprotected exposure to their engine noise. The Veteran's credible report of noise exposure in service is consistent with the nature, circumstances, and places of his service. As such, it establishes hazardous noise exposure in service. As mentioned, service connection is already in effect for left ear hearing loss. This grant of service connection was based on the Veteran's separation examination. Resolving doubt in favor of the Veteran, the Board finds that service connection is warranted for right ear hearing loss. The Veteran had hazardous noise exposure in service and now has bilateral hearing loss. His left ear hearing loss began in service and is already service-connected. There is no indication that the Veteran's service-connected right ear hearing loss is due to a cause other than the in-service noise exposure. The Board acknowledges that the Veteran did not have a hearing loss disability at separation from service. Nevertheless, recent evidence shows that he now has bilateral hearing loss and that the level of hearing loss in the right ear is only slightly lower than in the left ear, suggesting that the hearing loss progressed at a similar pace in both ears. Based on this evidence, and resolving doubt in favor of the Veteran, the Board concludes that the right ear hearing loss, while it appears to have manifested later than the left ear hearing loss, is also due to noise exposure in service. Therefore, service connection for right ear hearing loss is granted. 2. Service connection for degenerative disc disease is granted. The Veteran seeks service connection for a spine disability, described as degenerative disc disease. 06/24/2014, VA 21-526EZ, Fully Developed Claim. A January 2015 VA examination indicates that the Veteran has degenerative changes of the lumbar spine and cites a November 2014 X-ray report showing a diagnosis of mild lumbar spine degenerative disease. The examiner opined that this diagnosis is less likely than not related to service. The examiner's rationale was the current low back pain is not the same as the pain that the Veteran had in service, adding that he had a muscle strain in service and now had changes consistent with degenerative disease. The January 2015 VA examination does not show adequate consideration of the relevant evidence and, for this reason, is inadequate. Significantly, the opinion did not take into consideration the Veteran's reported history of back symptoms since service, nor the nature of his in-service injuries. At his March 2021 Board hearing, the Veteran reported three events where he injured his back: when he fell off a truck, when he fell off the side of a bunker, and when he was swung around and thrown down by a dog form the K-9 unit. He testified that he sought treatment for these injuries. For the first two, he was given painkillers. For the third one, he was placed on light duty for around three weeks. He also testified that he reported his back issues at separation and that has continued to have back issues ever since service. The Veteran's separation examination confirms that he reported a history of recurrent back pain. Service treatment records also document at least one instance where the Veteran sought treatment for back symptoms. Specifically, in February 1977, the Veteran complained of back problems for about a week and reported a long history of back stiffness from his work as dog handler due to dogs pulling on their leash. A mild strain was diagnosed. 09/19/2014, STR-Medical, at 42. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of arthritis as evidenced by a November 2014 X-ray report, cited in the January 2015 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran has reported multiple back injuries in service and his separation examination notes a history of chronic back pain. Furthermore, the Veteran's testimony establishes that he has continuously had back symptoms since service. The Veteran is competent to report his history of observable symptoms. His statements in this regard are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that the Veteran developed back problems in service, which continue to this day. In sum, the evidence supports a finding that the Veteran has had continuity of symptomatology attributable to his chronic back disability since service. Service connection on a presumptive basis is therefore granted. REASONS FOR REMAND 1. Entitlement to a compensable rating for left ear hearing loss is remanded. At his March 2021 Board hearing, the Veteran reported VA treatment for his hearing loss in the past two years (2019-2020). He reported having been told that his hearing loss had worsened, and he now qualified for hearing aids. VA treatment records were last associated with the claims file in June 2017. As there is an indication of relevant VA treatment since that date, a remand is required for the Agency of Original Jurisdiction (AOJ) to obtain these records. Additionally, as there is an indication that the Veteran's hearing loss has worsened, and considering that more than five years have passed since the last VA examination, the Board finds that a new VA examination is warranted. 2. Entitlement to service connection for a gastrointestinal disability, claimed as residuals of hiatal hernia, is remanded. The Veteran seeks service connection for a disability claimed as residuals of hiatal hernia. 06/24/2014, VA 21-526EZ, Fully Developed Claim. VA treatment records show a history of hiatal hernia since 2006. 01/12/2015, CAPRI, at 239. More recently, in August 2015, he was found to have a hiatal hernia, gastritis, and duodenitis (per an upper endoscopy) and underwent a laparoscopic hiatal hernia repair in October 2015. Treatment records also show a diagnosis of GERD. At his March 2021 Board hearing, the Veteran testified that he had acid reflux in service and had been treated for it ever since. He believes that his hiatal hernia is related to these symptoms. Service treatment records show a diagnosis of probable gastroenteritis in January 1977. Additionally, his report of medical history at separation reflects that the Veteran was uncertain as to whether he had a history of frequent indigestion, stomach or intestinal trouble, or liver or gall bladder issues (i.e. instead of checking off the box of "Yes" or "No", the Veteran checked off the box for "Don't Know"). The Veteran has not undergone a VA examination to determine the nature and etiology of his current gastrointestinal disability. Based on the evidence of record, which shows a current diagnosis, as well as symptoms in and since service, the Board finds that VA's duty to assist to provide an examination to assist with adjudication of this matter is warranted. 3. Entitlement to service connection for a left wrist disability, claimed as both residuals of a left wrist injury and carpal tunnel, is remanded. The Veteran seeks service connection for a left wrist disability, claimed as both residuals of a left wrist injury and carpal tunnel. 06/24/2014, VA 21-526EZ, Fully Developed Claim. At hs March 2021 Board hearing, the Veteran testified that he had had what appear neurological symptoms in his left wrist/forearm since service. He asserted that these symptoms are due to his handling of dogs in the K-9 unit. He also described an incident where a dog bit and grabbed on to his arms for multiple minutes. He reported a current diagnosis of carpal tunnel syndrome. Service treatment records confirm that the Veteran was treated for a dog bite on his left forearm, which showed two deep puncture wounds. Treatment consisted of irrigations, antibiotics and use of a splint. 09/19/2014, STR-Medical, at 17, 47-48. The Veteran underwent a VA examination in January 2015. The disability benefits questionnaire (DBQ) for wrist and peripheral nerve conditions capture the Veteran's reported history but do not report a specific diagnosis. Nevertheless, the opinion for a peripheral nerve condition indicates that the Veteran currently carries a diagnosis of median and ulnar neuropathies. Meanwhile, the opinion for a wrist condition indicates that the Veteran currently has a small (about 3 mm) opaque foreign body projected over the distal scaphoid on X-ray, which appeal to be the explanation for the Veteran's current disability. The examiner opined that these disabilities are less likely than not related to service. Regarding the median and ulnar neuropathies, the examiner's rationale was that this disability first manifested in 1998, almost twenty years after service. Regarding the foreign body projected over the distal scaphoid, the examiner's rationale was that "the location of the bite is not the same as the condition that appears to be causing the current disability. The January 2015 VA examination is inadequate for the following reasons. First, the Board finds that the current diagnosis is unclear. More specifically, the nature of the disability caused by the foreign body projected over the distal scaphoid is unclear. The Board further finds that the VA opinions does not show adequate consideration of the Veteran's assertions. As mentioned above, he has reported a history of what appear to be neurological symptoms since service. Finally, the opinion relies in the absence of evidence of treatment prior to 1998 and does not provide a medical explanation for why the current neurological symptoms are not related to what appears to have been a significant dog bite in service. 4. Entitlement to a compensable rating for the service-connected right foot disability. The Veteran is service-connected for a right foot disability, characterized as post-operative status exostosis right second toe. This disability is rated as noncompensable under Diagnostic Code (DC) 5284. As the Board is remanding for the RO to obtain recent VA treatment records, the Board finds that the appropriate course of action is to defer adjudication of this issue until after the development requested in this remand has been completed. *** Finally, the Board finds that additional development is necessary regarding service and VA treatment records. At his March 2021 Board hearing, the Veteran indicated that he has only received VA treatment records and suggested that such treatment started right after service. The Veteran's claims file, however, does not contain any VA treatment records prior to 1998. Thus, it is possible that there are earlier VA treatment records that have been obtained and associated with the claims file. In May 2017, the Veteran submitted a VA 21-4142 Authorization for Release of Information for treatment received between 1975 and 1876 at the Loring Air Force Base hospital. It is unclear whether any such hospital records are already included in the Veteran's service treatment records. Furthermore, there is no indication that the RO has tried to specifically obtain records from the Loring Air Force Base hospital. As military hospital records are not necessarily included in service treatment records, the Board finds that additional development action is warranted. The appeal is REMANDED for the following actions: 1. Obtain any available VA treatment records for the period since 1979 (year of separation from service). Document the file with all requests/responses. If unavailable, notify the Veteran and his representative. 2. Take appropriate action to obtain any treatment records from the Loring Air Force Base hospital. Document the file with all requests/responses. If unavailable, notify the Veteran and his representative. 3. After completing #1 and #2, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hearing loss. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. After completing #1 and #2, schedule the Veteran for a VA examination for his claimed gastrointestinal disability. 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 below. The examiner is asked to provide a response to the following: Is any current diagnosis at least as likely as not related to service? Provide a comprehensive rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service 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 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? If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training) 5. After completing #1 and #2, schedule the Veteran for a VA examination for his claimed left wrist/forearm disability. 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 below. The examiner is asked to provide a response to the following: Is any current diagnosis at least as likely as not related to service? Provide a comprehensive rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injuries 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 injuries 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 injuries and 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? In addition to the documented dog bite in the left forearm, please consider the Veteran's service as a dog handler in the K-9 unit and the extent to which the stress placed on the Veteran's left wrist and forearm from this MOS hay have caused the current disability. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.