Citation Nr: 21030790 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-32 029 DATE: May 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for residuals back injury is remanded. Entitlement to service connection for a gastrointestinal (GI) disorder including gastroesophageal reflux disease (GERD) and residuals of bowel obstruction is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, the evidence is at least in equipoise as to whether tinnitus is the result of noise exposure in military service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1990 to August 1995, with service in Southwest Asia from August 1990 to March 1991. This matter comes on appeal from a July 2014 rating decision that denied service connection for GERD and residuals of bowel obstruction and confirmed and continued on reconsideration the previously denied claims of entitlement to service connection for a back disorder, bilateral hearing loss and tinnitus. The Veteran filed a notice of disagreement (NOD) in August 2014. The regional office (RO) issued a statement of the case (SOC) in June 2017. The Veteran appealed to the Board later in June 2017. During the pendency of the Veteran's appeal, the RO issued a rating decision in June 2017 that granted service connection for allergic rhinitis (history of chronic maxillary and frontal sinusitis, claimed as sinus condition) and small avulsion fracture possible distal articular aspect right secondary MC, old, with no current pathology and negative clinical evaluation, claimed as wrist condition, right. These issues were included in the August 2014 NOD. The record currently before the Board contains no indication that the Veteran initiated an appeal with the initial ratings or effective date assigned. Thus, these matters are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The Veteran appeared for a Board hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the testimony is associated with the claims file. By way of procedural history, the RO denied the Veteran's original claim of service connection for residuals of a back (and neck) injury as not well grounded. He did not appeal this decision. In an August 2013 rating decision, the RO denied the Veteran's original claim of service connection for a hearing loss based on a finding that there were no audiometric findings in his service treatment records that meet the requirements for hearing loss and tinnitus based on a finding that it neither occurred in nor was caused by service, and again denied the claim of service connection for a back disorder, finding it had neither occurred in nor was caused by service. The Veteran did not submit a timely notice of disagreement (NOD) with this rating. However, prior to expiration of the appeal period, in July 2014, the RO issued a rating decision denying an original claim of service connection for GERD and residuals of bowel obstruction and reconsidered its August 2013 rating decision which denied service connection for hearing loss, tinnitus, and a back disorder. The RO confirmed and continued these prior denials finding that the evidence submitted did not support a change in the prior decision. As noted above, the Veteran has appealed this decision. On August 14, 2013 (after the August 13, 2013 rating was issued), new and relevant service treatment records were associated with the claims file. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156 (c)(1). Because the service treatment records added are relevant official service department records that existed and had not been associated with the claims file when VA initially decided the prior claims, these claims will be reconsidered without the need for new and material evidence. 1. Tinnitus 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 Veteran contends that service connection is warranted for tinnitus as due to noise exposure in service. He served in an MOS as a Cannon Crewmember for 5 years 2 months, with training in field artillery. He testified as to being subjected to first experienced acoustic trauma during the Gulf War deployment, in 1990-1991 and after that he started having ringing in his ears ever since then. He described still having ringing in his ears to this day. He described having ringing in his ears all through that deployment while they were shooting and moving around. He was unable to recall whether he had a hearing examination on separation in 1995. He testified that he has had ringing in his ears continuously since being separated from service. Service treatment records are silent for ear problems, to include ringing ears. Post-service records show sporadic reports of tinnitus with records from August 2007, October 2008, November 2009, and December 2010 showing that he denied ringing in his ears. However, records dated in July 2015 show that he reported ringing in his ears/tinnitus. None of the post-service records contained an opinion regarding the etiology of the tinnitus noted. The Veteran underwent two VA audiological examinations addressing his hearing loss and tinnitus claims in July 2013. The earlier examination of July 17, 2013 noted the Veteran to report ringing in his ears having started 3-4 years earlier, that was intermittent in nature. Following review of the evidence the examiner opined that it is less likely than not that tinnitus is caused by or the result of military noise exposure. The examiner reasoned that the audiometric configuration was not consistent with exposure or noise trauma, but failed to provide further explanation about this, rendering it of limited probative value. The second VA examination conducted on July 29, 2013 again disclosed reports of intermittent tinnitus for the past 3 years. No etiology opinion was given. His hearing was noted to be within normal limits for VA purposes in both examinations. The Board notes that the etiology opinion rendered in July 2013 was made without benefit of the review of the Veteran's lay testimony alleging that he first noted the beginning of tinnitus symptoms while still on active duty. Given the above, the balance of the lay and medical evidence reflects tinnitus to be a subjective symptom that as likely as not was caused by in-service acoustic trauma. Again, the unfavorable VA opinion is found to not be supported by adequate rationale and is of limited probative value. A finding that tinnitus is related to in-service acoustic further supported by the Veteran's competent and credible reported history, to include during his Board hearing testimony noted above. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board therefore finds that the Veteran has tinnitus, and that competent and probative lay evidence indicates that it as likely as not began on or around the time of the established in-service exposure to acoustic trauma and continued thereafter. With this in mind, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. It is noted that for chronic diseases under 38 C.F.R. § 3.309 (a), such as organic disease of the nervous system, an award of service connection is permissible based solely on evidence of continuity of symptomatology, per Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board further finds the evidence to at least be in equipoise as to whether the Veteran's current tinnitus is due to in-service acoustic trauma. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that his bilateral hearing loss is the result of noise exposure during military service. In-service noise exposure has been conceded by the VA and he has been granted service connected for tinnitus as due to such exposure in the above decision. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. at 157. 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, 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 Board finds that remand of this matter is necessary to afford proper development of this matter. The unfavorable opinions obtained by the two July 2013 VA audiological disorders examinations were based on audiological findings that were of normal hearing for VA purposes. The Board notes that STRs are not fully complete and did not include audiological examinations on entrance and separation. The Veteran has testified in his 2021 hearing that his hearing has worsened since he underwent VA examinations for hearing loss in July 2013. He testified that since service, he has required the TV and radio to be turned up loud, and that others have complained about this. He also indicated that the VA tested his hearing 2 years ago. Transcript pg. 6-8. A review of the records discloses no such test results, and in fact the most recent records in the claims file are more than 2 years old. Additionally, it is noted that in light of the missing service treatment records (STRs), VA has a heightened duty to assist the Veteran in development of his claim. See O'Hare v. Lewinski, 1 Vet. App. 365, 367 (1991). Although the RO did formally inform the Veteran regarding the lack of availability of his service treatment records, specifically regarding the alternative forms of evidence that can be developed to substantiate the claim per an April 2013 VCAA letter, additional development continues to be indicated in light of the Veteran's testimony as to worsening hearing since the July 2013 VA examinations. As such, further AOJ action in this regard is warranted. Furthermore, in light of this heightened duty, along with the Veteran's lay testimony of a worsening hearing since he was last examined in 2013, a VA examination should be obtained addressing the nature and etiology of his claimed hearing loss. Given the Veteran's contentions of symptoms of hearing loss at his February 2021 hearing, the evidentiary deficiencies of the July 2013 VA examination and the fact that there has not been medical evidence obtained since December 2014, the Board finds that a new VA examination that addresses the lay testimony in light of Hensley, is warranted on remand and that any pertinent records regarding his claimed hearing loss disability should be obtained. 2. Entitlement to service connection for residuals back injury is remanded. The Veteran contends that service connection is warranted for residuals of a back injury. At his hearing he testified that he had ongoing symptoms of back pain ever since an incident in December 1991 when he was treated after being struck on his head by the hatch to the track vehicle he was driving. This incident was described as resulting in pain radiating down his head, neck and back. He described having pain ever since and with subsequent treatment for back pain in service and post service with the VA. He also described treatment with over the counter medications. Available STRs show treatment in May 1991 for pain in the low back and around shoulder after the Veteran was driving track and the hatch fell on his head. Later he was treated in April 1995 after he struck his head against a cross beam in an upper bunk and injured his neck, resulting in cervical muscle spasm, but with no findings regarding the back. After he underwent a VA examination in February 1998, which diagnosed lower back strain, status post head injury, with no clinical or x ray evidence to support further diagnosis at this time, service connection was denied for a back disorder as not well-grounded in an August 1998 rating. At that time, the AOJ found that although there is record of complaints in service for low back and treatment for cervical spasms and strain, no permanent residual or chronic disability subject to service connection is shown by STRs or demonstrated following service. Since that decision, the evidence has shown the Veteran to have a current lumbar spine disability, with treatment including medication, therapy and injections by the VA primary care and physical medicine and rehabilitation for chronic back problems. Findings are noted to include chronic low back pain treated in May 2012 with CT findings in June 2012 of mild bilateral foraminal stenosis at L5-S1 partially secondary to a circumferential disc protrusion. A March 2014 MRI of the lumbar spine diagnosed L5-S1 level degenerative disk disease (DDD) with diffuse bulging disk and resulting mild biforaminal stenosis and short pedicles compatible with congenital spinal stenosis. No acquired central spinal stenosis was shown. Given the evidence of a current lumbar spine disability, along with the hearing testimony suggesting continuity, further examination is indicated in light of the history of an in-service injury with back symptoms. Furthermore, in light of the lumbar MRI findings suggesting not only a DDD but a congenital disorder, further examination should address whether there was a superimposed injury of such disorder during service. Additionally, given the need for further development, remand should also include obtaining more current records addressing his lumbar spine disability. 3. Entitlement to service connection for a GI disorder including GERD and residuals of bowel obstruction is remanded. The Veteran contends that service connection is warranted for a GI disorder to include GERD and/or residuals of bowel obstruction. At his February 2021 hearing he contended that his current symptoms are the result of a bowel obstruction for which he was treated in service. He testified that he started having reflux symptoms in service that he treated with over the counter medication. He also testified to having other GI symptoms in service such as diarrhea. He indicated that he currently took antacids and was scheduled to see a gastroenterologist. . Service treatment records confirm that he was treated in service for GI symptoms in August 1993 when he was treated for abdominal pain, nausea, and vomiting blood (hematemesis) and was diagnosed with small bowel obstruction in August 1993. A September 1993 treatment record gave a diagnosis of peptic ulcer disease (PUD) in January 1993, which was crossed out and changed to hematemesis. An undated record when he was age 22 also showed treatment for diarrhea and vomiting. Post service records are noted to show the Veteran to have a diagnosis of GERD noted as early as an October 2008 physical. The Veteran underwent a VA examination addressing his GI symptoms of GERD and residuals of bowel obstruction in May 2014. The examiner provided an unfavorable opinion, stating that incurred in or caused by partial small bowel obstruction, hematemesis and gastritis that occurred during service was not related to the claimed GERD. The rationale stated that a cause and effect relationship between GERD and partial small bowel obstruction had not been established to date by the preponderance of the medical literature. No citations were made to the literature supporting such rationale, and no further explanation was given, thus the Board finds this opinion to be insufficient. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion that relies on the absence of general medical literature supporting nexus without discussing the specific facts of the case is inadequate). Additionally, the Board finds that the medical evidence obtained since this examination raises the possibility of service connection on a secondary basis. Of note, the Veteran is service connected for PTSD and among the treatment records addressing this disability, a March 2015 mental health appointment noted that the psychiatrist advised him to stop taking folic acid to see if symptoms of nausea and vomiting resolved after the Veteran thought that the folic acid was upsetting his stomach. . Thus, on remand the secondary issue this raises should be addressed. Accordingly, the Board finds that remand is warranted for an examination that more fully addresses the nature and etiology of the Veteran's claimed GI disability. Additionally, given the need for further development and the Veteran's testimony suggesting he would be receiving additional GI treatment, remand should also include obtaining more current records addressing his GI disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records not already associated with the claims file to include any VA treatment records from August 2017 to the present pertaining to claimed hearing loss, back disability, and GI disorder including GERD. 2. After completion of #1, schedule the Veteran for a VA audiological examination to determine the nature and etiology of any claimed bilateral hearing loss disability. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. All indicated studies should be performed. If the audiological examination reveals a current hearing loss disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right and/or left ear hearing loss disability is related to his period of active service, to include noise exposure. The examiner should note that in-service noise exposure is conceded, and that service-connection is in effect for tinnitus. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should discuss the lay testimony and statements from the Veteran and any pertinent evidence obtained pursuant to this remand. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any 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. As appropriate, the AOJ should conduct additional development or supplement the record. 3. After completion of #1, schedule the Veteran for a VA thoracolumbar spine disorders examination to determine the nature and etiology of any claimed back disability. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. All indicated studies should be performed. For any disability of the lumbar spine diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's thoracolumbar spine (back) disability is related to his period of active service, to the in-service injuries noted in the available service treatment records, including the injury from the hatch falling on his head documented in May 1991 and the injury documented in April 1995 when he struck his head against a crossbeam. The examiner should also clarify whether any congenital back disability is shown, and if so, specify whether it is a defect or disease. If a defect, was there additional disability to the defect during service due to aggravation by a superimposed disease or injury? If a disease, is it at least as likely as not that it worsened beyond its natural progression during active service? The examiner should provide a comprehensive rationale for any opinions and conclusions offered. If a requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. If any medical literature is cited, then provide a copy of it or a link to it. 4. After completion of #1, schedule the Veteran for a VA gastrointestinal disorders examination to determine the nature and etiology of any claimed GI disability. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. All indicated studies should be performed. For any GI disability diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's GI disability, to include GERD is related to his period of active service, to include the in-service GI issues including the small bowel obstruction treated and otherwise noted in the available service treatment records. (Continued on the next page) If service connection is not shown on a direct basis is any GI disorder at least as likely as not proximately due to or aggravated, i.e., worsened beyond its natural progression by service-connected PTSD to include any medication (such as folic acid) used in treatment of this disorder? The examiner should provide a comprehensive rationale for any opinions and conclusions offered. If a requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. If any medical literature is cited, then provide a copy of it or a link to it. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.