Citation Nr: 22013416 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-38 499 DATE: March 9, 2022 ORDER Entitlement to service connection for left upper extremity (LUE) nerve disability claimed as carpal tunnel syndrome, is denied. Entitlement to service connection for right upper extremity (RUE) nerve disability, claimed as carpal tunnel syndrome, is denied. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had LUE nerve disability to include carpal tunnel syndrome at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that the Veteran has had RUE nerve disability to include carpal tunnel at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for LUE nerve disability to include carpal tunnel syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for RUE nerve disability to include carpal tunnel syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Board remanded the appeal for further development. 1. Entitlement to service connection for LUE nerve disability to include carpal tunnel syndrome. 2. Entitlement to service connection for RUE nerve disability to include carpal tunnel The Veteran contends that he has bilateral carpal tunnel syndrome (CTS) as a result of "a lot of hand/wrist activity" in service which caused worsening pain over time and later required surgery. See VA Form 210526EZ (January 2014); NOD (May 2015). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a nerve disability of either upper extremity to include CTS and he has not had one at any time during or the pendency of the claim or approximate to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records reflect no complaints or findings for abnormal pathology of the upper extremity nerves to include CTS. Report of Medical Examination on service entry (May 1966) and separation (March 1968) reflect normal clinical evaluation of the upper extremities and neurologic systems. Report of Medical History at separation reflects no history of symptoms of either upper extremity to include the wrists. In January 2014, VA received the Veteran's claim for service connection for bilateral carpal tunnel syndrome. See VA Form 210526EZ (January 2014). In November 2014, VA received private treatment records, dated May 1983 to October 2020. These records document complaints involving the hands in May 1998. A May 1998 letter between physicians reflects that the Veteran, a truck driver, had been referred to Rheumatology and Associates for an evaluation of multiple joint complaints that included symptoms involving the hands. By history, the Veteran had a 6 month history of discomfort involving his hand joints and increasing discomfort with gripping, that the clinician finding that stating that "this seems to relate to symptoms more of a carpal tunnel syndrome..." The impression included bilateral carpal tunnel syndrome, mild. In November 2000, the Veteran underwent surgery for left CTS with median neuropathy and left ulnar nerve dysfunction secondary to compression at the elbow. In April 2001, the Veteran underwent surgery for right CTS with median neuropathy. See Medical Treatment Record Non-Government (November 2014). Excepting surgical followup, the record reflects no further complaints of or findings for signs and symptoms of bilateral carpel tunnel syndrome. VA obtained November 2019 and July 2021 VA examinations. These examinations, while acknowledging that the Veteran had had CTS and surgery, revealed no current nerve disability of either upper extremity. Clinical evaluation showed normal grip and muscle strength, normal reflex exam, and normal sensory exam with no trophic changes or peripheral nerve symptoms. Also there was no scar. Both the 2019 and 2021 VA examination reflect no functional impact on the Veteran's ability to work. An October 2021 addendum medical opinion showed as well that the Veteran's had resolved carpal tunnel syndrome. The Board acknowledges the Veteran's report that he has symptoms such as pain from CTS. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018), ("pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity."). However, in this case, neither the lay nor the medical evidence shows any functional loss or impairment in earning capacity due to his reported symptoms. Saunders, 886 F.3d 1356, 1363(Fed. Cir. 2018). It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). The evidence of record persuasively weighs against finding that the Veteran has a current disability, CTS or related disability. Accordingly, the claims are denied. As the evidence of record persuasively weighs against the claims, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss disability is remanded. 2. Entitlement to service connection for left ear hearing loss disability is remanded. The Veteran contends that he has bilateral hearing loss caused by in-service noise exposure, specifically, his exposure to sirens, weapons, and road noises. See NOD (May 2015). The record establishes that the Veteran has bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Service treatment records (STRs) reflect normal hearing acuity in the right ear on service entry in May 1966 and separation in May 1968. Prior to October 31, 1967, service department audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)- American National Standards Institute (ANSI). For in-service audiograms conducted between January 1, 1967, and December 31, 1970, where the standard used is unclear, the data under both ASA and ISO-ANSI standards will be considered. A May 1966 Report of Examination on service entry reflects a hearing loss disability for VA purposes in the left ear only. 38 C.F.R. § 3.385. Audiometric testing showed puretone thresholds, in decibels, as follows with the findings after conversion for ISO-ANSI units shown in parentheses: 05/1966 HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 5 (15) 15 (25) --- 30 (35) LEFT 15 (30) 5 (15) 5 (15) --- 45 (50) A May 1968 separation examination reflects audiological findings that do not meet the VA criteria for a hearing loss disability under either the ASA or ISO-ANSI units. They are as follows: 05/1968 HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) -5 (5) --- 5 (10) LEFT 0 (15) 5 (15) 10 (20) --- 0 (5) A March 1968 Report of Medical History (ROMH) from the Veteran associated with his separation reflects that he reported a history of having or having had: Ear, nose and throat trouble and hearing loss. The "Physician's Summary and Elaboration" on this reflects that the Veteran reported he occasionally has difficulty hearing voices, but there was no serious and no marked hearing loss by audiometry. No specific ear was identified. A May 1998 private treatment record reflect that the Veteran reported "some decrease in hearing." See Medical Treatment Record- Non-Government Facility (November 2014). Next, a December 2014 private audiological examination diagnosed mild to profound sensorineural hearing loss left worse than right. See Medical Treatment Record- Non-Government Facility (January 2015). The examiner noted that the Veteran was "possibly seen here in 1990's for worker's compensation claim at attorney Jim Lowell (Roadway Express, Inc)." Id. An August 2019 Subsequent Development Letter which requested relevant medical documents from the Veteran's worker's compensation claim was unanswered. See Subsequent Development Letter (August 2019). VA audiological examinations, dated in November 2019 and May 2021, reflect that the Veteran has bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. A November 2019 VA audiological examination reflects a history of noise exposure in service and post service with hearing protection. The Veteran reported in post-service noise exposure from: hunting with a .22 rifle; operating chainsaws and lawnmowers; employment at a warehouse loading and unloading driving delivery trucks. He reported in-service exposure from: high frequency dental drills; weapons fired with the right hand; and ambulance sirens. The examination report noted that the Veteran had "normal bilateral hearing at separation with significantly improved bilateral thresholds at 4K Hz." As to the right ear, a November 2019 VA medical opinion (VAMO) reflects that it was less likely as not caused by or the result of an in-service injury given that audiometric findings show the Veteran's hearing had significantly improved within normal limits while serving on active duty and no evidence was found indicating the manifestation of symptoms within one year of separation from service. As to the left ear, a November 2019 VAMO reflects that the Veteran's left ear hearing loss disability clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond normal progression by an in-service injury, event, or illness. See C&P Exam (November 2019). The rationale was: This veteran's medical record noted left ear high frequency hearing loss of 45dB at 4K Hz for his enlistment exam dated 26 May 66 and his separation exam from 22 May 68 noted his left ear threshold at 4K Hz as 0dB. Therefore, it is less likely than not this veteran's pre-existing left ear hearing loss was aggravated beyond normal progression per his medical record finding normal hearing at this threshold at the time of separation. A May 2021 Board decision remanded the claim because it found that the November 2019 VA medical opinion was unclear. It stated that: Upon review, the Board finds it is unclear whether the VA examiner was aware of the results of the in-service examination audiograms when converted, as such demonstrate both improvement and degradation in the Veteran's hearing during service. The Board's remand directives requested an opinion, with consideration of the STRs audiological findings after conversion from ASA to ISO units, addressing: (1) Whether the Veteran's pre-existing left ear hearing loss clearly and unmistakably underwent an increase in severity that was not due to the natural progress of the condition; and (2) Whether the Veteran's current right ear hearing loss had its onset in, or is otherwise related to, his military service, to include his in-service noise exposure from ambulance sirens and high speed dental drills. Thereafter, a July 2021 VA examination and opinion were obtained. As to the right ear, the opinion reflects that hearing loss was not caused by or a result of an event in military service as the Veteran's military occupational specialty (MOS) carried a low probability of hazardous military noise. As to the left ear, it reflects that: (1) There was not permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 HZ for the left ear; and (2) the Veteran's left ear hearing loss is not at least as likely as not caused by or a result of an event in service. The rationale was stated as: The claimant's MOS carries a low probability of hazardous military noise exposure. He has no badges or medals that indicate excessive noise exposure on his DD-214. His separation exam revealed no threshold shifts at any frequency. He enlisted with pre-existing hearing loss. Then, the opinion provided that the Veteran's left ear hearing loss existed prior to service and was not aggravated beyond normal progression in military service. The rationale was stated as: ...claimant's enlistment audiogram revealed hearing loss at 4000Hz. His separation exam revealed hearing within normal limits. Having carefully reviewed the evidence of record, the Board finds that remand is necessary as the VA medical opinions obtained are inadequate for adjudicative purposes. First, the VAMOs are inadequate because, while both provide clear conclusions and data to support the conclusions reached, neither opinion explains why the data or facts referenced support the conclusion reached. For instance, the May 2021 negative opinion as to the left ear hearing loss merely supports the negative conclusion with the fact that there was hearing loss at 4000 Hertz on service entry and normal hearing at service separation. Here, no explanation is provided, such as for example that this shows clearly and unmistakable no aggravation because there was actually an improvement in hearing acuity. Further, the opinion does not expressly reflect that the correct legal standard was appliedthat is the clear and unmistakable standard. The Board may not substitute its own medical rationale for that of the opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). A "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). It is noted that the presumption of soundness does not apply to the Veteran's left ear hearing loss disability as it was noted on service entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). High frequency hearing loss of the left ear was noted on the Veteran's May 1966 entrance examination in both the audiometric tests and the summary of defects and diagnoses. See STR (May 2014). The question raised thus is whether there is clear and unmistakable evidence, obvious or manifest (38 C.F.R. § 3.306(b)) that it was not aggravated in service. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009); Cotant v. West, 17 Vet. App. 116, 131 (2003). 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). See McKinney v. McDonald, 28 Vet. App. 15, 29 (2016). Second, the May 2021 VAMO does not reflect that it considered the converted in-service audiograms from ASA to ISO-ANSI units as directed by the Board's prior remand. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Third, neither VAMO reflects any meaningful consideration of the Veteran's history of hearing loss at service separation. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). Fourth, as to the right ear hearing loss, neither opinion explains why it is less likely than not related to in-service noise exposure. The May 2021 VAMO notes that the Veteran had a low probability of hazardous noise exposure, no badges/medals to excessive noise exposure, no threshold shifts at any frequency, and preexisting hearing loss. This rationale is flawed as it appears to reject the Veteran's history of noise exposure or omits any medical explanation as to why it is insufficient to cause hearing loss even of delayed onset. It is also flawed because it relied on an incorrect factual premise that the Veteran had preexisting hearing loss of the right ear on service entry. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based upon an inaccurate factual premise has no probative value). Given the above, remand is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion to determine the nature and etiology of bilateral hearing loss. The entire claims file, including a complete copy of this remand, should be made available to the clinician for review. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression, and severity of any symptom consistent with bilateral hearing loss. In particular, the conversion of the in-service audiograms from ASA to ISO-ANSI units should be reviewed. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: (a) Whether the Veteran's pre-existing left ear hearing loss clearly and unmistakably underwent an increase in severity that was not due to the natural progress of the condition. If so, is there clear and unmistakable evidence that such increase in severity is due to the natural progress of the condition? (b) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current right ear hearing loss had its onset in, or is otherwise related to, his military service, to include his in-service noise exposure from ambulance sirens and high-speed dental drills. Note (1): A negative medical opinion may not be predicated solely on the absence of documented in-service complaints or findings. NOTE (2): If the clinician rejects any history (e.g., injury, symptoms in or since service, treatment, etc.), he/she must indicate this in the examination report and provide a rationale for so doing. 2. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.