Citation Nr: 22017473 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-18 210 DATE: March 25, 2022 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a stomach disability, to include gastroesophageal reflux disease (GERD), is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1974 to April 1976. The Veteran testified at a Board hearing at the local Regional Office in October 2021 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Although the Veteran is represented by the American legion, his representative was not present at the Board hearing. Nevertheless, the Veteran elected to proceed with the hearing without his representative. Additional VA clinical records were associated with the record that have not been considered by the agency of original jurisdiction (AOJ). Nevertheless, waiver of AOJ consideration of these records is not necessary as there is no prejudice to the Veteran because the AOJ will have the opportunity to consider them on remand. The Board recognizes that the AOJ characterized the Veteran's hearing loss claim as entitlement to service connection for left ear hearing loss. However, the medical evidence of record shows that the Veteran has hearing loss in both ears for VA purposes. Moreover, at the Board hearing, while the Veteran testified that his hearing loss was worse in his left ear, he did report that he experienced hearing loss in both ears. VA must liberally interpret a claimant's characterization of his or her disability when a broad interpretation is more favorable to the Veteran. Thus, the Board has recharacterized the issue to encompass both ears. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that his hearing loss began in service. The Veteran's military occupational specialty was heavy equipment operator and mechanic. Moreover, service treatment records show that in July 1975, the Veteran was diagnosed with tinnitus secondary to noise exposure. He has also been awarded service connection for tinnitus due to inservice noise exposure. As such, the Veteran's in-service noise exposure is conceded. The Veteran was afforded a VA examination in May 2019. The examiner found that the Veteran's hearing loss was not related to service. The rationale was that his hearing loss was normal upon discharge and no standard threshold shift (STS) evidence. The examiner continued that the Institute of Medicine (IOM) (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure and stated the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure. Therefore, as there is objective evidence that there was no hearing loss or STS evident in service, there is no objective evidence of noise injury in service, and in the examiner's clinical opinion, a nexus cannot be made; and the Veteran's his hearing loss is less likely as not (less than 50/50 probability) caused by or a result of in-service noise exposure. The examiner continued that the Veteran stated that his hearing loss began in service at age 18 and that and his July 2017 VA Audiology record noted that he reported he had a test when he left the military saying he had hearing loss, however, those contentions are not supported by or corroborated by the objective evidence, as all of his military audiograms revealed hearing within normal limits, including his separation audiogram. The Veteran is deemed competent to testify as to the nature, onset, and circumstances of a claimed condition, but Veteran cannot diagnose the condition or determine its etiology, and in this case his military records reveal hearing within normal limits with no significant shifts greater than normal measurement variability. A prior opinion in July 2017 also found that the Veteran's hearing loss was not related to service. Again, the opinion was based on normal hearing upon discharge and no significant threshold shift. The examiner again relied on the IOM study. Importantly, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision in McCray v. Wilkie, 31 Vet. App. 243 (2019), which discussed the above noted 2006 IOM report. The Court noted that the IOM report concluded, in part, that "based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss." However, the IOM report also indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." The Court then held that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. McCray, 31 Vet. App. at 257. Here, although the examiners relied on the report, they did not clearly address the inconsistencies in the IOM report. Moreover, neither VA examiner addressed the Veteran's July 1975 inservice noise injury. Likewise, the examiners also primarily relied on the fact that the Veteran had normal hearing at discharge. However, the Veteran does not have to show hearing loss at the time of discharge in order to establish service connection. See Hensley v. Brown, 5 Vet. App. 155 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Accordingly, the Board must find that the VA opinions are inadequate as the examiners relied on the IOM report, which contains contradictions concerning delayed onset hearing loss, and did not appear to consider all the relevant evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board finds that an addendum opinion is necessary. 2. Entitlement to service connection for a stomach disability, to include gastroesophageal reflux disease (GERD), is remanded. The Veteran asserts that he began having stomach symptoms in service that have continued to the present. He has also reported that he has continued to use various over the counter medications to treat his symptoms and has been variously diagnosed with different stomach disabilities over the years. Service treatment records show that he was seen on a few occasions for stomach symptoms a few months prior to his discharge. Post service private and VA clinical records also show treatment for stomach issues, including a diagnosis of GERD. The Veteran was afforded a VA examination in August 2017. While the examiner found that the Veteran's stomach issues were not related to service, the examiner failed to provide an adequate rationale. In an April 2019 addendum opinion, a different VA examiner also found that the condition was not related to service. The examiner rationalized that the Veteran has two entries in his service treatment records from 1976, which mention somewhat typical peptic ulcer complaints. Whether they were longstanding after those entries is unknown (other than his statements). His separation examination is negative, he had UGI testing (which was normal in service), and the record is silent until he sees VA providers in approximately 2015-2016. Even though he did have complaints in service, the lack of treatment records over time is worrisome. His VA stomach examination does mention his longstanding complaints, but again, there is an approximate 40 year timeframe with no records to review. One would imagine that at least some health care would have been obtained, other than him managing it on his own. Therefore, this examiner opines it is less likely his current stomach condition is a result of the isolated entries in service, as there is a tremendous time gap from discharge up until the most recent VA records concerning upper gastrointestinal complaints. Any records in the interim would be helpful in assisting with this claim, and the Veteran should be invited to submit additional interim records (1976-2016) to support his contention. Given the VA examiner's opinion and the Veteran's hearing testimony that he has received medical treatment over the years, the Board finds that the AOJ should take appropriate steps, including contacting the Veteran, to obtain any additional relevant private treatment records from the date of his discharge from service to the present. Further, the Veteran also testified that he has received more recent treatment for his disability at the VA and these records have not been associated with the claims file. Moreover, although the VA examiner based their opinion on the lack of medical treatment over the years, the examiner did not address the Veteran's lay statements concerning the various medications he has used to treat his symptoms or his statements that he has received treatment at various times since service. Thus, in light of the above, the Board finds that another VA examination should be afforded to the Veteran in order to obtain a complete medical history with respect to his stomach disability, including his various medical treatments and medications used over the years. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment records for his stomach disability from 1976 to the present. Make two requests for the authorized records from any identified physicians and/or facilities, unless it is clear after the first request that a second request would be futile. 2. Obtain additional VA clinical records dated from May 2020 to the present. 3. Return the record, to include a copy of this Remand, to the VA examiner who provided the May 2019 opinion addressing the etiology of the Veteran's bilateral hearing loss. If the May 2019 VA examiner is not available, the record should be provided to an appropriate medical professional to render the requested opinion. The need for another examination is left up to the discretion of the examiner. Following a review of the record, the examiner should opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease, including conceded in-service noise exposure. A rationale for any opinion offered should be provided. In offering such opinions, the examiner should consider the Veteran's lay statements of pertinent symptomatology and that he suffered an inservice noise injury in July 1975. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to any hearing loss or complaints thereof. He or she is also advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. Finally, if the examiner relies upon the IOM (2006) report in offering a negative opinion, he or she should reconcile such reliance with the report's finding that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any stomach disability, including GERD. The claims file must be reviewed and a complete medical history obtained from the Veteran. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the documented in-service incidents of stomach complaints. A rationale for any opinion offered should be provided. In offering such opinions, the examiner should consider the Veteran's lay statements of pertinent symptomatology as well as address his contentions that he treated is symptoms with over-the-counter medications since service, and was diagnosed with various stomach disabilities over the years. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.