Citation Nr: 22015441 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-25 437 DATE: March 17, 2022 ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for bilateral upper extremity (BUE) radiculopathy is granted. Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for tension headaches is granted. Entitlement to service connection for bilateral hearing loss (BHL) is denied. Entitlement to service connection for bilateral recurrent tinnitus is denied. REMANDED Entitlement to service connection for bilateral upper extremity (BUE) neuropathy is remanded. Entitlement to service connection for a bilateral foot condition is remanded. FINDINGS OF FACT 1. The Veteran's cervical spine disability is related to complaints of neck pain during service. 2. The Veteran's BUE radiculopathy is secondary to his cervical spine disability. 3. The Veteran's psychiatric disorder is related to military service and aggravated by his service-connected disabilities. 4. The Veteran's tension headaches are secondary to his service-connected disabilities. 5. The Veteran bilateral hearing loss is not considered a disability for VA compensation purposes. 6. The Veteran's bilateral recurrent tinnitus is due to post-service occupational and recreational noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for BUE radiculopathy as secondary to the service-connected cervical spine disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for an acquired psychiatric impairment are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for tension headaches as secondary to service-connected disabilities are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for bilateral recurrent tinnitus are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from April 1982 to April 1986. This case comes before the Board on appeal of an October 2015 rating decision. This case was previously before the Board in March 2019, where the issues on appeal were remanded for further evidentiary development. In a January 2022 statement in support, the Veteran requested to withdraw his travel board hearing request. He asked that BVA continue to process his claim without a travel board hearing. Therefore, the Board considers the request withdrawn. See 38 C.F.R. § 20.704 (e). Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes sensorineural hearing loss and tinnitus. See 38 C.F.R. §§ 3.303 (b), 3.309 (a); see also 38 U.S.C. §§ 1112, 1137. First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303 (b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. § 3.307 (a)(3). The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for a cervical spine disability 2. Entitlement to service connection for bilateral upper extremity (BUE) radiculopathy Here, the Veteran contends that his cervical spine disability is related to active-duty service. Based on the evidence, the Board agrees. At the outset, the Veteran has a current diagnosis of cervical spondylosis, cervical canal stenosis, herniated nucleolus pulposus C3-4, C4-5, and C5-6. Thus, the first element of service connection is met. Likewise, the second element is met. Specifically, the Veteran's service treatment records (STRs) document instances where the Veteran complained of and was treated for cervical and lumbar pain. The Veteran complained of neck pain in January 1984. Likewise, in August 1985, the Veteran was seen for neck and back pain for one-month, where the Veteran complained of pain from his neck to his head, all the way down into the shoulder blade, as well as into the low back. Assessment was possible muscle strains. See STRs. As such, the second element of service connection is met. Therefore, to warrant service connection, there must be evidence that there is a nexus, or link between the Veteran's in-service cervical condition and his current disability, which is generally proven by medical evidence. In that regard, in a December 2018 private examination, Dr. M.B. opined that it is as likely as not that the Veteran's neck condition began in service. She reasoned that the Veteran had no neck issues upon entering service in January 1982. However, by, January 1984, the Veteran complained of neck pain for past five days. Then, in an August 1985 record, the Veteran complained of neck and back pain for past one month. She explained that the Veteran was tender on the left side of his neck up into his head and all the way down in his shoulder block. Dr. M.B. continued that a VA treatment record from June 1995 showed a diagnosis of cervical/LS myositis, recurrent. X-rays at that time showed a limbus vertebra defect at the interior end plate of C-5, anteriorly which may have been secondary to an anterior end plate disc herniation. Dr. M.B. stated that the Veteran's neck issues continued in a February 2017 treatment record. In that record, the Veteran complained of neck pain at an 8 out of 10 with radiation to the upper extremities and shoulder with associated paresthesias, weakness, numbness and cramps of the upper extremities bilaterally. She also relayed information provided by the Veteran's wife, which detailed his pain upon coming back from service. Based on the information, Dr. M.B. concluded that the Veteran's cervical condition began during service and continued to present. Additionally, Dr. M.B. stated that the Veteran developed bilateral upper extremity radiculopathy as a result of his neck problems. The Board finds Dr. M.B.'s opinion to be competent, credible, and highly probative. She reviewed the pertinent evidence, accounted for the Veteran's statements and competent lay statements from the Veteran's wife, interviewed the Veteran, then provided an opinion based on the evidence and medical principles. Based on the foregoing, the Board finds that service connection for the Veteran's cervical spine disability and BUE radiculopathy is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Entitlement to service connection for an acquired psychiatric disorder Here, the Veteran contends that his psychiatric disorder was caused by service and exacerbated by his physical ailments. Based on evidence, the Board agrees. At the outset, the Veteran has a current diagnosis of major depressive disorder (MDD). See September 2017 private examination. Thus, the first element of service connection is met. Additionally, the second element of service connection is met. As discussed by Dr. H.H-G. the Veteran reported that his depression began in military service due to fear, stress and anxiety of failing to perform is military tasks all the time. Additionally, the Veteran was suffering from musculoskeletal discomfort, was in a lot of pain, and suffered from stress over the concern of his physical condition. Moreover, his wife explained that the Veteran was active, healthy, enjoyed running, was easy-going and had a network of friends. She explained that when the Veteran returned his was short-tempered, easily frustrated, depressed, had trouble sleeping, nightmares and lost contact with friends and did not interact with family, became socially withdrawn/isolated and loss interest in activities he once enjoyed, among other things. Furthermore, Dr. H.H-G. explained that the Veteran's physical limitations aggravated his depressive disorder. Thus, the second element is met. Therefore, to warrant service connection there must be evidence of a nexus, or link between the Veteran's service and/or his service-connected disabilities and his current psychiatric disorder, which is generally proven by medical evidence. In that regard, Dr. H.H-G. opined that the Veteran's MDD more likely than not began in military service, continues uninterrupted to the present and is aggravated by his right shoulder condition, lumbar spine condition, left shoulder condition, and GERD. Dr. H.H-G. reasoned that in addition to the competent lay evidence from the Veteran's wife, there is a body of literature that detailed the emergence of mental health symptoms within active-duty servicemen. The article found that active military service impacted depression, anxiety and quality of life satisfaction. Additionally, Dr. H.H-G. stated that other researchers revealed that guilt is a salient feature in mental health diagnoses of active-duty military personnel. In fact, active-duty military personnel become disillusioned with their personal and professional identities and as a result of the chronic guilt and shame associated with their service identities, have more mental health events than civilians. See December 2018 private examination. Dr. H.H-G. added that there is also literature that detailed the connection between medical issues and psychiatric disorder, like the Veteran's MDD complaints. She explained that there is a causal relationship between medical and psychiatric difficulty. Moreover, individuals with medical issues and MDD debilitation become disabled due to the holistic effect of medical and psychiatric disturbances, similar to the Veteran's physical impairments and psychiatric disorder. The Board finds Dr. H.H-G. opinion to be competent, credible, and highly probative. She reviewed the pertinent medical evidence, accounted for the Veteran's lay statements as well as his wife's statements, examined the Veteran, then provided an opinion based on the evidence and medical literature. Furthermore, the Board finds the Veteran's wife statements to be competent, credible, and probative of the Veteran's physical and psychiatric condition upon returning from active service. Based on the foregoing, service connection for an acquired psychiatric disorder is granted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. Entitlement to service connection for tension headaches Here, the Veteran contends that his tension headaches are secondary to his cervical spine disability, as well as his other service-connected disabilities. Based on the evidence, the Board agrees. At the outset, the Veteran has been diagnosed with tension headaches. See December 2018 private examination. Thus, the first element of secondary service connection is met. Likewise, the second element of secondary service connection is met. Specifically, as decided herein, the Veteran is service connected for his cervical spine disability and psychiatric disorder. In addition, the Veteran is service connected for other disabilities, including his lumbar spine and bilateral shoulders. Therefore, to warrant secondary service connection there must be evidence of a nexus or link, between the Veteran's tension headaches and his service-connected disabilities, which is generally proven by medical evidence. In that regard, in the December 2018 medical opinion, Dr. M.B. opined that it is as likely as not that the Veteran's shoulder, back, and neck pain, as well as his depressive disorder all aid in the development of and permanently aggravate his tension headaches. She added that it was not possible to differentiate how much each of the issues contributed to his headaches, but that all conditions play a role in the development and aggravation of his headaches. She reasoned that upon interviewing the Veteran, he explained that when his shoulder pain, back pain, and neck pain are bothering him, it would bring on a headache. The Veteran also stated that when his depression has manifested, he would become stressed out which brought on headaches. Dr. M.B. explained that research had shown that there is a strong relationship between psychological stress and headache. She continued that neck pain and tenderness are common symptoms presented in many headache disorders. Dr. M.B. added that when cervical dysfunction or degenerative changes caused headaches, it is referred to as cervicogenic headache. The Board finds Dr. M.B.'s opinion to be competent, credible, and highly probative. She reviewed the pertinent evidence, accounted for the Veteran's lay statements, examined the Veteran, then provided an opinion based on the evidence and medical literature. Furthermore, there is no probative evidence on record that is in opposition to Dr. M.B.'s opinion. Based on the foregoing, service connection for tension headaches is granted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. Entitlement to service connection for bilateral hearing loss (BHL) 6. Entitlement to service connection for bilateral recurrent tinnitus Here, the Veteran contends that he was exposed to hazardous noise during military service, which has led to his bilateral hearing loss and recurrent tinnitus. Based on the evidence, the Board disagrees. To begin, impaired hearing will be considered a disability when, in pertinent part, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater. 38 C.F.R. § 3.385. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this instance, the Veteran does not have bilateral hearing loss for VA purposes. In the March 2018 VA examination, audiometric testing yielded the following findings: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 30 25 25 LEFT 20 25 30 30 25 The Veteran's average puretone threshold bilaterally was 28. Additionally, the Veteran's Maryland CNC speech recognition score was 100 percent bilaterally. Based on the audiometric findings, the Veteran does not have bilateral hearing loss for VA purposes. The Veteran does not have an auditory threshold in any of the frequencies at 40 decibels or greater; nor, do at least three frequencies have a decibel of 26 or greater with a speech recognition score less than 94 percent. Thus, the probative evidence is against a finding that the Veteran has bilateral hearing loss for VA purposes. Regarding tinnitus, the Board notes that tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Importantly, if the veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In this instance, during the March 2018 examination, the Veteran reported that his bilateral tinnitus had been intermittent for about two years. The audiologist opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. She reasoned that the Veteran reported tinnitus many years after separation from military service. The audiologist explained that the Veteran is not service connected for hearing loss and his current loss, did not appear to be related to acoustic trauma from noise exposure during service, but most likely from the combined etiologies of post service occupation and/or recreational noise exposure. The Veteran reported the longstanding history of post service occupational noise exposure, in building and structure demolitions and construction equipment. Based on the evidence and the Veteran's statements regarding the onset of his bilateral intermittent tinnitus, the Board finds that service connection for bilateral tinnitus is not warranted. Accordingly, the Board finds that the evidence of record is against a finding of service connection for bilateral hearing loss and bilateral tinnitus. As the evidence is against the Veteran's claims, the benefit of doubt doctrine is not applicable. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for bilateral upper extremity (BUE) neuropathy is remanded. Here, the Veteran contends that he suffers from BUE neuropathy that is secondary to his cervical spine disability. Based on the evidence, a remand is necessary. Specifically, a November 2020 VA treatment record indicated that the Veteran's neuropathy is secondary to his nonservice connected diabetes mellitus. Additionally, a May 2019 VA treatment record indicated that the Veteran had mild focal median neuropathy of his wrists secondary to his cervical spine disability. Given the conflicting medical evidence, remand for a VA examination to determine the etiology of the Veteran's BUE neuropathy is warranted. 2. Entitlement to service connection for a bilateral foot condition is remanded. Lastly, remand is necessary to determine whether the Veteran has a bilateral foot condition. The Veteran's STRs indicate numerous instances of lower extremity issues, including swollen feet, shin splints, and diagnoses of metatarsalgia, plantar fasciitis, and anterior tibial syndrome. However, the Veteran's current treatment records reflect foot care due to his diabetes mellitus with only one mention of metatarsal discomfort. As such, remand for a VA examination to determine the etiology of any diagnosed bilateral foot condition is warranted. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examinations to determine the etiology of his BUE neuropathy and bilateral foot condition. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's BUE neuropathy had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's BUE neuropathy is caused by his service-connected cervical spine disability. (c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's BUE neuropathy is aggravated (i.e., worsened beyond normal progression) by his service-connected cervical spine disability. (d.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral foot condition, if diagnosed, had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 3. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. Thereafter, readjudicate the claims on appeal. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.