Citation Nr: 18123943
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 14-38 989
DATE:	August 6, 2018
REMANDED
Entitlement to service connection for bilateral hearing loss is remanded.
Entitlement to service connection for tinnitus is remanded.
Entitlement to service connection for a lumbar spine disability is remanded.
Entitlement to service connection for hepatitis C is remanded.
REASONS FOR REMAND
The Veteran had an honorable period of service in the U.S. Army from June 1970 to June 1973 and had a dishonorable period of active duty service for VA purposes from July 1974 to February 1976.
The Veteran’s DD Form 214 shows that he was discharged in February 1976 under other than honorable conditions.  A January 1977 administrative decision determined that the Veteran’s other than honorable discharge in February 1976 for the period of service commencing in July 1974 was issued under dishonorable conditions and is a bar to all VA benefits for that period of service.  All determinations on his service connection claims must be based on his honorable service between June 1970 to June 1973, because benefits cannot be awarded on his dishonorable service.  
These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in April 2012 and May 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and Jackson, Mississippi, respectively.  Jurisdiction of the case is now before the RO in St. Petersburg, Florida.  
The Veteran testified before the undersigned Veterans Law Judge at a May 2018 videoconference hearing.  A transcript of this hearing is of record.
In May 2018, the Veteran submitted additional evidence in support of his appeal along with a signed waiver of RO consideration of evidence.  The Board accepts this evidence for inclusion in the record.  See 38 C.F.R. § 20.1304.  
1. Entitlement to service connection for bilateral hearing loss is remanded.
2. Entitlement to service connection for tinnitus is remanded.
At a March 2012 VA examination, the VA examiner opined that the Veteran’s currently diagnosed bilateral hearing loss was less likely than not caused by or a result of his military service.  Finding that the Veteran had normal hearing upon separation, that he had post-service occupational noise and recreational noise exposure, and that his present degree of hearing loss was mild sloping to profound bilaterally 39 years after service, the VA examiner concluded that the Veteran’s bilateral hearing loss was “more than likely impacted by presbycusis [(defined as “age-related hearing loss)] and/or some other etiology.”  Evidence submitted since that examination calls into question the adequacy of this VA opinion.  
Since his March 2012 VA examination, the Veteran has submitted statements and testimony describing how his hearing loss was present both during and after service.  Specifically, he recounted how during service, people spoke loudly, so it did not occur to him that he had hearing difficulties.  However, after service, he said that friends and family confronted him about how loudly he spoke and how he listened to the radio and television at the maximum volume.  Moreover, he explained how he was reading lips and visually observing situations in order to communicate.  Not until the Veteran was tested at VA did he realize how extensive his hearing loss was.  See March 2012 statement and May 2018 Board hearing transcript.  
Moreover, the Veteran indicated that his duties as armorer, which were not specifically noted by the March 2012 VA examiner, exposed him to loud noise when he would be firing weapons on the gun range four times a month for three years without effective hearing protection.  He said that he wore earplugs made of rubber that would frequently fall out of his ears.  He also indicated that as a supply clerk, he worked in the motor pool and was exposed to loud noise from the engines.  See September 2014 VA Form 9 and May 2018 Board hearing transcript.  
Finally, the Veteran also submitted an April 2018 private opinion from his treating physician, who opined that the Veteran’s significant hearing loss was “probably due to weapons use in the motor pool.”  
Based on this additional evidence provided by the Veteran, the Board finds that the March 2012 VA opinion is inadequate.  It is based on an incomplete history of the Veteran’s hearing loss symptomatology and his military noise exposure.  Further, the March 2012 VA opinion, in stating that the Veteran’s hearing loss was more likely “impacted” by his age or some other etiology, suggests that the Veteran’s military noise exposure could still be a contributing factor of his hearing loss.  As this possibility was also not addressed by the March 2012 VA examiner, the Board finds that a remand is required to obtain a supplemental VA opinion.  
As the March 2012 VA examiner also found that the Veteran’s tinnitus is a symptom of his bilateral hearing loss, it would be premature to decide the Veteran’s service connection claim for tinnitus.  Therefore, these issues are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Accordingly, the Veteran’s service connection claim for tinnitus must also be remanded.  
3. Entitlement to service connection for a lumbar spine disability is remanded.
At his November 2013 VA examination, the VA examiner diagnosed the Veteran with congenital spina bifida occulta, lumbar strain, and lumbar radiculopathy of the right lower extremity with osteoarthritis and disc protrusion.  Finding that the Veteran was on profile for a congenital anomaly of his back during service and that his 2010 back x-ray showed transitional vertebra and pseudo articulation on the right at the lumbosacral junction, noted to be a congenital anomaly, the VA examiner concluded that it was less likely than not that the Veteran’s current lumbar spine disability was caused by or a result of his military service.  Noting the radiological finding of right leg radiculopathy and osteoarthritis and disc protrusion at L5-L6, the VA examiner also indicated that there was “no objective evidence to support aggravation.”  No further explanation was provided.  
For the following reasons, the Board finds that the November 2013 VA opinion is inadequate.  The November 2013 VA opinion suggests that service connection for a congenital disability may not be awarded.  In fact, service connection for a congenital disease may be awarded if it initially manifested in, or was aggravated by, service.  VAOPGCPREC 82-90 (July 18, 1990).  The November 2013 VA opinion does not establish whether or not the Veteran has a congenital disease that was manifested in or aggravated by service or a congenital defect with a superimposed disability.  As the correct legal standard was not applied, a remand is required to obtain a supplemental VA opinion.  
4. Entitlement to service connection for hepatitis C is remanded.
In multiple statements as well as at his May 2018 Board hearing, the Veteran indicated that his current hepatitis developed as a result of the unsanitary use of an air gun to administer his vaccinations upon enlistment.  He explained that the device was used on each soldier without it being cleaned or sterilized between each use.  In May 2018, the Veteran submitted an April 2018 private opinion in which Dr. S.S., commenting on the Veteran’s description of his in-service vaccination process, stated that “this kind of lack of sterile technique could indeed transmit hepatitis C as well as hepatitis B.”  As the Board finds that his opinion is speculative and not based on a thoroughly reasoned analysis, it cannot be relied on as a basis for granting service connection.  However, this opinion in conjunction with the Veteran’s lay statements do show that further development of this issue is necessary.  Accordingly, a remand is required to obtain a VA opinion to determine the nature and etiology of the Veteran’s hepatitis C.  
The matters are REMANDED for the following actions:
1. Obtain all the outstanding treatment records for the Veteran’s bilateral hearing loss, tinnitus, lumbar spine disability, and hepatitis C that are not currently of record.
2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral hearing loss is at least as likely as not related to his active duty service, to include military noise exposure.
In providing the above opinion, the examiner should address the Veteran’s report of in-service exposure to loud engines while working as a supply clerk in the motor pool, and exposure to weapons fire while training on the gun range with ineffective hearing protection.  
If it is the opinion of the examiner that the Veteran's current bilateral hearing loss is not related to in-service acoustic trauma, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss.
A complete rationale with discussion of medical literature for any opinion expressed must be provided.  If an opinion cannot be expressed without resort to speculation, discuss why this is the case.
3. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s lumbar spine disability.  The examiner should provide an opinion addressing the following:
(a.) Is it at least as likely as not that the Veteran’s congenital spina bifida occulta is a congenital defect?  If so, is it at least as likely as not that his congenital spina bifida was subject to a superimposed disease or injury during his period of active duty service from June 1970 to June 1973?
(b.) Is it at least as likely as not that the Veteran’s congenital spina bifida is a congenital disease?  If so, is it at least as likely as not that it had its onset during service OR if it preexisted his period of service from June 1970 to June 1973, that it became aggravated beyond its natural progression during his period of active duty service from June 1970 to June 1973? 
(c.) Is it at least as likely as not that the Veteran’s lumbar osteoarthritis and disc protrusion had its onset during his period of service from June 1970 to June 1973, or was otherwise etiologically related to his period of service from June 1970 to June 1973?  
In providing the above opinions, the examiner must address the April 2018 private opinion from Dr. S.S., who stated that if the Veteran was required, as reported, to lift, move, or push heavy objects during service, then this could have contributed to him developing degenerative joint disease or arthritis.  
4. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s hepatitis C is at least as likely as not related to his period of active duty service from June 1970 to June 1973, to include his reported risk of exposure due to the vaccination process using an air gun at his enlistment.  
5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to service connection for tinnitus.  If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.
 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Journet Shaw

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