Citation Nr: 22018267 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-49 920 DATE: March 28, 2022 ORDER Service connection for a right ear hearing loss disability is granted. Service connection for tinnitus is granted. REMANDED Service connection for a cervical spine/neck disability is remanded. Service connection for residuals of a head injury is remanded. Service connection for migraines is remanded. Service connection for a seizure disorder is remanded. Service connection for a lumbar spine disability is remanded. Service connection for a disability of the right upper extremity, to include the shoulder, arm, and radiculopathy, is remanded. Service connection for a disability of the left upper extremity, to include the shoulder, arm, and radiculopathy, is remanded. Service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's right ear hearing loss disability was shown as chronic in service and is not attributable to intercurrent causes. 2. The Veteran has experienced tinnitus since his separation from active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right ear hearing loss disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus 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 had active service from July 1983 to March 1984, with subsequent periods of service in the Army National Guard (ARNG). This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ) dated in November 2013 and February 2015. The Veteran requested a hearing before a Veterans Law Judge of the Board. A Board hearing was initially scheduled in April 2020. In March 2020, the Veteran's representative requested that the hearing be rescheduled. Another Board hearing was scheduled in January 2022, but the Veteran failed to report for such hearing, and a request for postponement demonstrating good cause as to why a timely request to postpone was not received. Thus, the Veteran's hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). During the pendency of the appeal, in a September 2020 rating decision, the AOJ granted service connection for a left knee disability. Thus, this issue is no longer in appellate status. Service Connection 1. Service connection for right ear hearing loss is granted. 2. Service connection for tinnitus is granted. The Veteran asserts that he incurred bilateral hearing loss and tinnitus due to noise exposure during his period of active duty from July 1983 to March 1984, and during periods of service in the ARNG. 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). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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; see also McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385). 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 regulatory requirements for hearing loss disability for VA compensation purposes (i.e., under 38 C.F.R. § 3.385), 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 (1993). To establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). The Veteran has current diagnoses of sensorineural hearing loss of the right ear and tinnitus as evidenced by the March 2013 VA examination. Sensorineural hearing loss and tinnitus are enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The results of the Veteran's March 2013 VA audiological examination show that he currently has sufficient hearing loss in the right ear to be considered a disability according to the requirements of 38 C.F.R. § 3.385. The Board is conceding noise exposure from weapons fire during training in active duty, based on the Veteran's DD Form 214 showing qualification as a sharpshooter, his credible lay statements of in-service noise exposure including at the March 2013 VA examination, and the presence of a current disability, as the Veteran is competent to report observable symptoms such as decreased hearing and the sound of crickets in his ears, and has done so credibly in this instance. The Board acknowledges that the March 2013 VA examiner provided a negative nexus opinion regarding hearing loss. The examiner opined that the Veteran had pre-existing hearing loss that was not aggravated beyond the normal progression in military service, and that there were no significant auditory threshold shifts when comparing the audiometric findings in the 1983 enlistment examination and the 1984 separation examination. On enlistment audiometric testing in June 1983, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 25 35 LEFT 5 10 5 0 5 On separation audiometric testing in January 1984, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 30 40 LEFT 10 15 10 10 5 The Board finds that the March 2013 VA medical opinion is of no probative value with regard to the claim of service connection for right ear hearing loss. While some degree of hearing loss was noted in the right ear on enlistment examination, it did not rise to the level of a hearing loss disability under 38 C.F.R. § 3.385, and therefore a hearing loss disability was not noted on entry into service. See McKinney, supra. A right ear hearing loss disability was first shown on separation medical examination in January 1984. As a chronic condition, any subsequent manifestations of right ear sensorineural hearing loss are service-connected unless attributable to intercurrent causes. Although the Veteran reported post-service occupational and recreational noise exposure at the March 2013 VA examination, the Board resolves reasonable doubt in his favor, and finds that service connection is warranted for a right ear hearing loss disability that manifested during active duty service. At the March 2013 VA examination, the Veteran reported that he had constant bilateral tinnitus that sounded like crickets for as long as he could remember. The VA examiner opined that it is less likely than not that the Veteran's tinnitus is due to military noise exposure due to the significant association between tinnitus and hearing loss. In other words, the examiner opined that the Veteran's tinnitus was related to his hearing loss. While no treatment records exist from the applicable presumptive period, the Board finds that the Veteran continued to experience symptoms of tinnitus since service. The Veteran is competent to report that he experienced symptoms of hearing the sound of crickets in his ears for as long as he could remember. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran's tinnitus. The Board resolves reasonable doubt in his favor, and finds that service connection is warranted for tinnitus. REASONS FOR REMAND 3. Service connection for a cervical spine/neck disability is remanded. 4. Service connection for residuals of a head injury is remanded. 5. Service connection for migraines is remanded. 6. Service connection for a seizure disorder is remanded. 7. Service connection for a lumbar spine disability is remanded. 8. Service connection for a disability of the right upper extremity, to include the shoulder, arm, and radiculopathy, is remanded. 9. Service connection for a disability of the left upper extremity, to include the shoulder, arm, and radiculopathy, is remanded. The Veteran asserts that he incurred a cervical spine disability, head injury, migraines, a seizure disorder, and disabilities of the bilateral upper extremities, to include the shoulders, arms, and radiculopathy, during a period of active duty for training in the ARNG in July 2001, when he fell from a truck and landed on the back of his neck and head. See his claims received in November 2012, June 2014, October 2014, and April 2016. Alternatively, he asserts that during active duty in August 1983, he was injured when he fell five times while climbing telephone poles during training. See February 2017 brief from the Veteran's former representative. With regard to the claim of service connection for a cervical spine disability, the Board notes that the AOJ previously denied this claim in an unappealed April 2009 rating decision. Since that decision, the Veteran has submitted additional relevant service treatment records that were not of record at the time of the prior rating decision. Governing regulation provides that, 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, notwithstanding paragraph (a) of this section, which concerns the need to have new and material evidence to reopen the claim under normal circumstances. See 38 C.F.R. § 3.156 (c). Thus, the Board will reconsider this claim on its merits. The Veteran indicated that his claimed disabilities may have begun during his service in the Tennessee ARNG in July 2001. The Veteran has reported that he had periods of service in the ARNG from 1985 to 2005. See VA outpatient treatment record dated in September 2016. On remand, AOJ should attempt to verify the Veteran's periods of active duty for training and inactive duty for training. The Veteran's claims file does not appear to contain his complete service personnel and service treatment records records for his periods of service in the ARNG. As they may contain information regarding the Veteran's dates of service and report of in-service injury to the neck and head in July 2001, a remand is required to obtain them. The Board notes that the available service treatment records show that he was treated for neck pain and strain in July 2001, but do not show treatment for a fall with injuries to the neck and back of the head. The Board cannot make a fully-informed decision on the issues of service connection for a cervical spine/neck disability, residuals of a head injury, migraines, a seizure disorder, a lumbar spine disability, and disabilities of the bilateral upper extremities, because no VA examiner has opined whether the claimed disabilities were incurred during a period of active service. An examination should therefore be scheduled on remand. It appears that there are outstanding pertinent private medical records. In a December 2011 VA outpatient treatment record, the Veteran reported treatment by Dr. D.P., of Summit Medical Group. He previously reported treatment for the claimed conditions by J.H., Jr., MD. See his December 2008 statement enclosing a November 2008 medical opinion from Dr. J.H. A remand is required to allow VA to obtain authorization and request these records. Evidence indicates that there may be outstanding relevant VA treatment records. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Finally, additional pertinent medical records and records from the Social Security Administration (SSA) were obtained by VA after the September 2016 statement of the case. On remand, the AOJ should review such records and issue a supplemental statement of the case. 10. Service connection for left ear hearing loss is remanded. The Veteran underwent a VA audiological examination in March 2013, and the examiner provided a negative opinion regarding the claim of service connection for left ear hearing loss. The Board finds that the March 2013 VA medical opinion is inadequate with regard to this claim, as it is based on inaccurate facts, and an addendum VA medical opinion is required. The March 2013 VA examiner opined that the Veteran had pre-existing hearing loss that was not aggravated beyond the normal progression in military service, and that there were no significant auditory threshold shifts when comparing the audiometric findings in the 1983 enlistment examination and the 1984 separation examination. However, a review of the June 1983 enlistment examination shows that a left ear hearing loss disability was not shown at that examination or on separation medical examination in January 1984. On remand, the examiner should provide an addendum medical opinion regarding whether a left ear hearing loss disability was incurred during a period of active service. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records, to include all documents pertaining to his service in the Tennessee Army National Guard. 2. Verify all active duty for training and inactive duty training dates for service in the Tennessee Army National Guard from 1985 to 2005. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. Retirement points will not suffice. 3. Make another attempt to obtain the Veteran's complete service treatment records, including records from service in the Tennessee Army National Guard. 4. Ask the Veteran to complete a VA Form 21-4142 for Dr. D.P., of Summit Medical Group, and Dr. J.H., Jr. Make two requests for the authorized records from these physicians, unless it is clear after the first request that a second request would be futile. 5. Obtain the Veteran's VA treatment records for the period from August 2020 to the present. 6. After the requested actions in paragraphs 1-4 have been completed, schedule the Veteran for a VA examination for his claimed disabilities: a cervical spine/neck disability, residuals of head injury, migraines, a seizure disorder, a lumbar spine disability, and disabilities of the bilateral upper extremities, to include the shoulders, arms, and radiculopathy. 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(s) below. The examiner is asked to provide a response to the following with regard to each of the claimed disabilities: Is the disability at least as likely as not related to service, including (a) alleged repeated falls from a telephone pole in training during active duty from July 1983 to March 1984, or (b) from documented neck pain/strain during a period of service in the ARNG in July 2001, or (c) an alleged fall from a truck in July 2001 during a period of service in the ARNG, when he reportedly landed on the back of his neck and head? Is it at least as likely as not that arthritis in any claimed joint (1) began during a period of active service or active duty for training, (2) manifested within one year after separation from active duty in March 1984, or (3) was noted during active service or active duty for training with continuity of the same symptomatology since service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury 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 injury 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 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 it is not possible to provide any of the requested opinions, the clinician 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). 7. After the requested actions in paragraphs 1-4 have been completed, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left ear hearing loss is at least as likely as not related to noise exposure during active duty from July 1983 to March 1984, or during a period of active service in the ARNG. Please assume that the Veteran did not have a left ear hearing loss disability at service entrance. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.