Citation Nr: 0814036 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-39 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Fell, Associate Counsel INTRODUCTION The veteran served on active military duty from August 1961 to August 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for hearing loss is addressed in the remand portion of the decision below and is remanded to the RO via the Appeals Management Center, in Washington, DC. FINDING OF FACT A back disorder is not related to active military service. CONCLUSION OF LAW A back disorder was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the veteran's claim for entitlement to service connection for a back disorder, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication of the veteran's claim, February 2005 and March 2006 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re-adjudication of the claim). The letter also essentially requested that the veteran provide any evidence in his possession that pertained to this claim. 38 C.F.R. § 3.159(b)(1). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although VCAA notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication). The veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Although VA is required to provide a medical examination when such an examination is necessary to make a decision on a claim, none is required here. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Here, as will be discussed further below, the evidence of record does not establish that the veteran experienced an event, injury, or disease in service and does not indicate an association between a back disorder and active service. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, degenerative joint disease may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service medical records, to include service entrance and discharge examinations, are negative for a back disorder. In a November 1988 private record, the veteran reported low back pain after someone landed on his back. In an April 1989 private record, the veteran stated he was involved in an automobile accident three years prior in which he dislocated his left hip. He stated that although he had severe pain after the automobile accident, x-rays at the time were unrevealing. The veteran reported pain in the left hip which seemed to be emanating from the left sacroiliac area. The veteran reported nagging low back pain of many years. The veteran also reported that his back was re-irritated after another person fell on his low back about three weeks prior. X-rays of the lumbar spine showed a spondylolisthesis of the L4 vertebral body. The impression was lumbosacral strain and a possible herniated disc. In an August 1989 private record, the veteran reported back pain. In a November 1989 private medical record, the veteran reported current back pain and problems with back pain in the past. In a December 1989 private record, the veteran complained of back pain. The veteran reported improvement due to medication, but a flare up in the previous two to three weeks. The examiner noted there was "no real injury" to the back. The examiner also noted left hip pain radiating from the back and tenderness in the left lumbar area with forward flexion, extension, and right lateral bending. A December 1989 private record noted a herniated disc fragment at L4-L5, plus bulging of the anulus at L5-S1. In a December 1989 private medical record, a computed tomography (CT) scan revealed evidence of a large herniated disc fragment on the left at L4-L5, bulging of the anulous or possible small herniated disc fragment on the right at L5-S1, and marked disc degeneration at this level with gas in the disc space. There were mild degenerative changes of the apophyseal joints of the lower lumbar spine. The impression was large herniated disc fragment on the left at L4-L5, bulging of the anulous fibrosis or small herniated nuclear fragments on the right at L5-S1, and advanced disc degeneration of L5-S1. A January 1990 private record noted the probable disc herniation as shown in the December 1989 CT scan and indicated that the herniation at the L4 level on the left produced hip and thigh pain with symptoms primarily in the low back and hip. In March 1993 private records, the veteran reported low back pain for the past four years and that he fell on ice and landed on his buttocks and back. In private records from March 1993 through August 1995, the veteran reported varying degrees of back pain. In a July 2003 private record, the veteran reported low back pain that began when he was hauling and picking up bales of hay. In January 2005 and July 2005 statements, the veteran stated that during service as an aircraft radio repairman, he lifted 80 to 100 pound radios from airplane wheels, that his back disorder began in 1961, and that he was treated for back problems in 1968, shortly after service discharge. In a September 2005 VA medical record, the veteran reported low back pain since the 1980s and that he had a CT scan at that time. A questionable pinched nerve was noted and a surgeon sent the veteran to physical therapy. The veteran reported recent dramatic relief with chiropractic treatment. The veteran reported that he lifted heavy equipment in the Air Force, farmed after discharge from service, and wore a back brace. In December 2005 statements, the veteran stated that in March 1993, he slipped on ice, but did not fall. This jarred his back and caused back pain. The veteran stated that in service he had to lift radios weighing 60 to 80 pounds on airplane wheels that were high off of the ground. Post service discharge, from 1965 to the spring of 1968, the veteran worked in an assembly line which required no heavy lifting and he had no trouble with his back. In 1968, the veteran began farming and had immediate trouble with his back. The veteran stated that he may not have sought treatment in 1968, but that he did seek treatment in the early 1970s for back problems. The veteran also reported that when his hip hurt in 1989, a specialist found that his back was causing the pain. The veteran was referred to physical therapy. The veteran stated he also received physical therapy after slipping on ice. The veteran stated that he began chiropractic treatment in the early 1990s and this helped his back. The veteran reiterated his belief that although he did not go to the doctor for his back in the service, he hurt his back while lifting the radios off of the ground to the wheel of the aircraft and then into the radio compartment. In a June 2006 statement, the veteran again stated that his back disorder was related to service. The veteran stated that he probably never mentioned his back pain was possibly caused by service. The veteran reiterated that he sought treatment for his back in the early 1970s. The veteran stated that he had been treated by a chiropractor regularly for the last twelve years, treatment had helped his back a little, and if he had not received the chiropractor's treatment, he was sure he would be in constant pain. The Board finds that the evidence of record does not support service connection for a back disorder. There is medical evidence of a current back disorder. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Although degenerative changes were diagnosed in December 1989, degenerative joint disease was not diagnosed within one year of service discharge. 38 C.F.R. §§ 3.307, 3.309. Additionally, the Board finds that there is insufficient evidence of inservice incurrence of a back disorder. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury). The veteran is competent to report that his active duty job required lifting and that he experienced back pain when lifting. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify regarding actual observations and personal knowledge). However, the veteran's service medical records are negative for back complaints, treatment, or injury. Moreover, the evidence of record does not demonstrate a nexus between a current back disability and active service. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical evidence of a nexus between the claimed in- service disease or injury and the current disability). The veteran stated that he experienced back pain as early as 1968 and was treated in the 1970s, but there is no objective medical evidence of a back disorder until November 1988, over 20 years after service discharge. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). The veteran stated that he did not experience back pain from 1965 to 1968 because he was working in an occupation that required no heavy lifting, but experienced immediate back pain when he began farming in 1968. Moreover, in private medical records from November 1988 to December 2005, the veteran reported low back pain after someone landed on his back, an automobile accident, hauling bales of hay, and slipping on ice and jarring his back. Although the veteran stated that his current back disorder was caused by active service, his testimony is not competent to establish a medical opinion of a nexus. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (holding that lay testimony is competent to establish pain or symptoms, but not to establish a medical opinion). Accordingly, service connection for a back disorder is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a back disorder is denied. REMAND With respect to the veteran's claim for entitlement to service connection for bilateral hearing loss, remand is required for additional development in accordance with VA's duty to assist. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, remand is required to obtain or attempt to obtain additional medical records. In an April 2006 VA medical record, a VA physician referred the veteran to Dr. Tegt. In a June 2006 statement, the veteran stated that Dr. Tegt administered a hearing test, found loss of high pitch, and concluded that this hearing loss was caused by exposure to loud noises. No records from Dr. Tegt are of record. Although it is unclear whether the records are private or VA records, they are relevant to the issue of entitlement to service connection. See 38 C.F.R. § 3.159(c) (noting that VA's duty to assist includes making reasonable efforts to obtain private medical records); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that where VA medical treatment records are material to the issue on appeal and are not included within the claims file, a remand is necessary to acquire such VA records, because VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees). Second, remand is required to obtain an additional medical opinion regarding the etiology of bilateral hearing loss. Although an April 2005 VA audiological examination was obtained, the examiner's opinion failed to address inservice and post-service occupational and recreational noise exposure, even though the veteran worked as a farmer since 1968. The examiner opined that because the service discharge examination was negative, any current hearing loss was not related to service. See 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Accordingly, an additional medical opinion is required. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions). Accordingly, the case is remanded for the following action: 1. The RO must provide notice as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO must contact the veteran and afford him the opportunity to provide contact information for Dr. Tegt. Subsequently, and after securing the proper authorizations where necessary, the RO must make arrangements to obtain all the records of treatment or examination from Dr. Tegt. The RO must also obtain any VA Medical Center treatment records not already of record. All information obtained must be made part of the claims file. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the veteran and his representative and (a) identify the specific records the RO is unable to obtain, (b) briefly explain the efforts that the RO made to obtain those records, and (c) describe any further action to be taken by the RO with respect to the claim. The veteran must then be given an opportunity to respond. 3. The RO must request from the veteran a statement regarding his post-service noise exposure, to include occupational and recreational noise exposure. 4. After receipt of any additional evidence, the RO must obtain a medical opinion from a VA examiner. The examiner must examine the entire claims file and provide an opinion regarding whether the veteran's current bilateral hearing loss was caused by his military service. After a review of the examination findings already of record, any history of inservice and post- service noise exposure, and the entire evidence of record, the examiner must render an opinion as to whether any current hearing loss is related to the veteran's period of military service, or to any incident therein, to specifically include as due to noise exposure. The examiner must specifically address the question of whether any degree of hearing loss began as a result of any inservice noise exposure. The examiner must specifically address the April 2005 VA audiological examination opinion, the private medical evidence of record, and all records of treatment or examination from Dr. Tegt. The examiner must support any opinion with citation to evidence in the record and not merely cite conclusions reached in the prior VA opinion, private medical records, or records obtained from Dr. Tegt. If an opinion cannot be provided without resort to speculation, it must be noted in the report. The rationale for all opinions expressed must be provided. The report must be typed. 5. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs