Citation Nr: 1301446 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 07-13 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for lumbosacral strain, posttraumatic spinal contusion. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for ileo-proctitis and inflammatory bowel disease, claimed as campylobacter virus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had honorable active service in the U.S. Army from February 1974 to February 1977, with additional active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Army National Guard from August 1977 to November 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2009, the Veteran presented testimony relevant to his appeal at a Board hearing held before a Veterans Law Judge (VLJ) at the local RO. A transcript of the hearing is associated with the record. In August 2009, the Board remanded the appeal for additional development. In March 2012 correspondence, the Veteran was advised that the VLJ who conducted his April 2009 hearing was no longer employed by the Board. He was further advised that he may request another Board hearing or have the Board make a decision based on the current record without further hearing. The Veteran responded later that month that he desired another Board hearing before a VLJ at his local RO. Therefore, in April 2012, the Board remanded the appeal to afford the Veteran his requested hearing. In August 2012, the Veteran presented further testimony before the undersigned VLJ. A transcript of the hearing has been added to the claims file. Subsequent to the August 2012 hearing, the Veteran submitted additional evidence accompanied by a waiver of RO consideration. Nevertheless, in view of the action taken below, initial consideration of that evidence by the RO should be undertaken. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND Further development is necessary for the claims on appeal. Although the Board regrets the additional delay in this long-pending appeal, a remand is necessary to ensure that due process is followed and that the Veteran is afforded every possible consideration. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that service connection is warranted for a low back disability, a gastrointestinal disability, and hearing loss. Specifically, the Veteran asserts that he currently suffers from gastrointestinal disorder resulting from campylobacter virus that he contracted during a period of ACDUTRA while stationed in Thailand in May 1990. He further asserts that his current low back disability is related to a spinal contusion sustained during a parachute landing while on ACDUTRA in May 1991. Finally, the Veteran asserts that his current bilateral hearing loss is the result of his noise exposure sustained while performing duties as a parachutist and Jump Master in the Army National Guard from 1977 to 2001. Pertaining to the Veteran's low back disability, the Board notes that his National Guard service treatment records are essentially negative for complaints relating to the low back. However, in a March 1992 report of medical history, the Veteran reported that he received treatment at Evans Army Hospital in May 1991 for an airborne injury diagnosed as a spinal contusion. The examiner's notes on the March 1992 report indicate that the Veteran was observed in the Emergency Room for eight hours and then released, and that there were no sequelae. In this regard, clinical evaluation of the spine in March 1992 was normal and the Veteran denied recurrent back pain at that time. He further denied recurrent back pain during National Guard service examinations in April 1993, May 1998, and February 1999, and clinical evaluation of the spine was normal during those examinations. In February 1999, the Veteran reported his health as outstanding. The Veteran has submitted personnel records showing that he was on ACDUTRA in May 1991. He further has submitted a copy of a July 1991 informal Statement of Medical Evaluation and Duty Status, which shows that an incident that occurred on May 17, 1991 was approved as occurring in the line of duty. The foregoing evidence, in conjunction with the March 1992 report of an airborne injury sustained in May 1991, supports that the Veteran sustained a low back injury in May 1991 during a period of ACDUTRA. The Veteran was afforded an April 2005 VA examination during which he reported a back injury as a result of a hard landing during a parachute jump in service. At the time of the landing, he struck out his heels and fell straight back on his gluteus. He was diagnosed with a spinal contusion, but refused hospitalization. He reported that he has experienced intermittent low back pain since that injury. Following examination and a review of unspecified records, the VA examiner diagnosed posttraumatic spinal contusion with residual lumbosacral strain. In light of the foregoing, it remains unclear to the Board whether the Veteran has a current low back disability that is related to the May 1991 spinal contusion documented in his service records. While cognizant that the April 2005 VA examiner's opinion suggests that the Veteran's current low back disability is a residual of the spinal contusion incurred during ACDUTRA, the Board notes that it is unclear from the examination report whether the "records" reviewed by the examiner in conjunction with the opinion included the claims file or, more specifically, the Veteran's service treatment records. In this regard, the Veteran's assertion to the examiner that he had experienced low back pain ever since the spinal contusion in service is directly contradicted by a number of service examinations dated after May 1991 during which the Veteran denied recurrent back pain. Nevertheless, in light of the evidence of an in-service airborne back injury and evidence of a current low back disability, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any current low back disability. Concerning hearing loss, the Veteran asserts that he currently suffers from hearing impairment as a result of exposure to noise from artillery fire during service and noise from jet engines while performing parachute jumps and carrying out his duties as a Master Parachutist and Jump Master. Service personnel records confirm the Veteran's airborne status and his status as a parachutist while serving in the National Guard. Available service treatment records are negative for complaints of hearing loss. Nevertheless, a January 1979 National Guard service examination for Officer Candidate School shows right ear hearing impairment for VA purposes, and some degree of hearing loss in the left ear when compared to a prior August 1977 service audiogram. However, a subsequent June 1979 National Guard service examination shows bilateral hearing acuity within normal limits, and bilateral hearing acuity was within normal limits thereafter during service examinations in January 1984, March 1985, March 1989, March 1992, April 1993, and February 1999. Post service private treatment records show that the Veteran sought treatment in May 2003 for left ear pain and hearing loss of three weeks duration. The Veteran denied any previous history of hearing loss. He further denied any problems with his right ear. Audiometric testing revealed normal hearing on the right. Regarding the left ear, there was a large conductive loss with a single frequency sensorineural hearing loss at 4000 Hertz. The remainder of sensorineural hearing on the left was consistent with the right. Following examination, the physician diagnosed acute serous otitis media and mixed hearing loss (primarily conductive with single frequency sensorineural loss). Subsequent audiometric evaluation in June 2003 revealed improvement in the Veteran's left hear conductive hearing loss. Also at that time the Veteran's borderline loss on the left was noted to be symmetric with the right. Thereafter, during a March 2004 evaluation, the Veteran seemed to recall that the left side had been worse than the right side for at least the last six years. Audiometric testing at that time showed a mixed hearing loss with the left side slightly worse than the right. The physician also noted that when compared to previous examinations, the right ear hearing was slightly diminished while the left ear was improved. The Veteran has been afforded two VA examinations in connection with his hearing loss claim. A February 2005 examination showed bilateral hearing acuity within normal limits. However, the examination report references the Veteran as well as another individual, and therefore, the Board previously determined that additional audiological evaluation was warranted, as it was unclear if the reported findings were those of the Veteran or a different individual. During a subsequent March 2010 VA audiological examination, bilateral hearing impairment for VA purposes was demonstrated. 38 C.F.R. § 3.385 (2012). However, while acknowledging that the Veteran was likely exposed to hazardous noise levels in service, the examiner found it to be less likely as not that the Veteran's current hearing loss is related to service. In support of that conclusion, the examiner noted the Veteran had hearing within normal limits during his August 1977 National Guard enlistment examination, and that the March 2004 private audiogram showed four frequency average hearing sensitivity within normal limits. Further, the examiner found that the February 2005 VA examination audiological findings were consistent with the March 2004 private audiological findings, and therefore, it was the examiner's opinion that the February 2005 findings were those of the Veteran. The examiner also noted that, according to literature, an individual may be exposed to hazardous noise levels and not have permanent damage, and further, that there is no evidence of delayed onset hearing loss. Therefore, the examiner found that it is more likely that the Veteran's hearing loss is related to possible post-service occupational/recreational noise exposure, middle ear infections, or other post-service etiologies, and less likely that his hearing loss is related to noise exposure while in service. Significantly, the March 2010 VA examiner did not address the January 1979 audiometric findings of right ear hearing impairment for VA purposes and diminished left ear hearing acuity. Additionally, the Veteran has once again challenged the adequacy of the March 2010 VA opinion, alleging that the author of the March 2010 VA opinion as shown on the examination report is not the individual who conducted the examination. Instead, the Veteran contends that in March 2010 he was examined by the same individual who conducted the February 2005 VA audiological examination. The Board acknowledges that the Veteran is competent to identify an individual to whom he has been previously been acquainted, which is in the realm of his personal experience. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, given the Veteran's concerns, and in light of the absence of any discussion by the March 2010 VA examiner of the January 1979 National Guard service examination showing some degree of hearing impairment, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any hearing loss. Next, with respect to the Veteran's claimed gastrointestinal disorder, it appears that pertinent records remain outstanding. The Veteran asserts that he has experienced chronic diarrhea, including bloody diarrhea, since May 1990 when he contracted campylobacter virus during a period of ACDUTRA. The Veteran has reported that he underwent a gastrointestinal procedure sometime in the 1990s that showed intestinal scarring. Available National Guard service treatment records show that the Veteran was treated in May 1990 for bloody diarrhea diagnosed as dysentery. Parenthetically, the Board observes that the Veteran has recently submitted orders showing that he was ordered to Thailand for ACDUTRA in May 1990. During a March 1992 service examination, he denied any stomach or gastrointestinal problems, and clinical evaluation was negative for findings of a gastrointestinal disorder. Thereafter, during an April 1993 National Guard service examination, the Veteran reported a history of a hiatal hernia. The service examiner noted that the Veteran had had a positive stool hemoccult test three months prior, and as a result, was scoped and found to have a hiatal hernia. However, at the time of the April 1993 examination, hemoccult stool test was negative. The Veteran subsequently denied any gastrointestinal and stomach problems on service examinations in May 1998 and February 1999, and stool hemoccult in February 1999 was negative. Post service, in February 2005, the Veteran sought private treatment for complaints of chronic intermittent diarrhea. He underwent a colonoscopy and biopsy, which suggested ischemic colitis but was not diagnostic of an infectious process of inflammatory bowel disease. Diagnoses were offered of nonspecific proctitis, mucosal changes endoscopically suggestive of old colitis, and nonspecific ileitis with normal biopsies. The physician also suspected nonsteroidal anti-inflammatory drug (NSAID) injury and/or prep effect, as noted on a February 2005 report. That physician subsequently submitted an August 2008 statement indicating that the Veteran's infection in service could have injured his digestive tract, resulting in some of his reported symptoms, and it is possible that the Veteran's symptoms materialized while he was serving on active military duty. The Veteran has been afforded two VA examinations to address the etiology of his gastrointestinal disorder. Most recently, a March 2010 VA examiner diagnosed nonspecific proctitis, endoscopic suggestion of old colitis, and nonspecific ileitis, and found that those diagnosed conditions are less likely as not related to the Veteran's contraction of campylobacter virus. Nevertheless, in light of the evidence indicating that there may be outstanding pertinent records relating to gastrointestinal treatment in the 1990s, the Board finds that additional remand is necessary prior to adjudication of the Veteran's claim. In this regard, it is unclear from the record whether the stool hemoccult testing, scope, and hiatal hernia diagnosis noted on the April 1993 service examination report were provided by an in-service provider, VA provider, or private provider, and no records from that procedure have been associated with the claims file. Nor have any other records pertaining to any other gastrointestinal procedure reported by the Veteran as occurring in the 1990s been associated with the Veteran's claims file. Therefore, the Board finds that additional remand is necessary in order to clarify from the Veteran from whom he received treatment for a hiatal hernia around 1992 or 1993 and to obtain the necessary authorization, if applicable, for VA to obtain those records. The Veteran should also identify any other provider from whom he received treatment related to gastrointestinal problems in the 1990s. Thereafter, if additional pertinent records are obtained pursuant to this remand, an additional VA etiological opinion should be obtained that considers the additional evidence. Finally, the Board observes that service treatment records appear to be outstanding. While treatment records from the Veteran's National Guard service dating from as early as August 1977 have been requested and associated with the claims file, it does not appear that service treatment records from the Veteran's period of active service from February 1974 to February 1977 have been associated with the claims file. Nor does it appear that significant effort has been made to request those records. While cognizant that the Veteran contends that his current disabilities on appeal are primarily related to his National Guard service, he has reported noise exposure from artillery fire and infantry duties, which the record shows to have occurred during his initial period of active duty service in addition to his National Guard service. Further, disabilities must be evaluated in relation to their history. Therefore, those records are considered pertinent to the Veteran's current claims and remand is necessary so that efforts may be made to obtain and associate them. Additionally, the Board notes that the Veteran has submitted copies of service records, including orders to active duty for training in May 1990, and a May 1991 line of duty determination, that are not contained in the service records that have been already associated with the claims file. As such, the Veteran should be asked to submit copies of all service personnel and treatment records currently in his possession. Moreover, as the claims are being remanded for other reasons, the Board finds that an additional attempt should be made to ensure that there are no pertinent outstanding records from Evans Army Hospital relating to treatment for the low back or gastrointestinal problems between 1991, when the Veteran injured his back, and April 1993, when the Veteran reported past treatment for a hiatal hernia. In summary, upon remand, additional efforts should be made to obtain service treatment records from the Veteran's period of active duty from February 1974 to February 1977, and records from Evans Army Hospital from 1991 to 1993. The Veteran should be requested to identify any outstanding treatment records pertaining to his gastrointestinal disorder and should also provide a release for any non-VA records, to include records relating to treatment for a hiatal hernia around 1992 or 1993 and gastrointestinal problems in the 1990s. After all identified, available records have been associated with the claims file, the Veteran should be afforded the appropriate VA examinations to determine the nature and etiology of his low back disability, bilateral hearing loss, and, if additional records are obtained, a gastrointestinal disorder. Each examiner should clarify the current diagnoses based on a thorough evaluation (including any necessary testing) and review of all pertinent evidence. Each examiner should also offer an opinion as to whether any currently diagnosed disability was incurred in or aggravated by service, to include any period of ACDUTRA or INACDUTRA. Development and readjudication upon remand should reflect consideration of all lay and medical evidence of record. In this regard, the Veteran, as a lay person, is competent to testify as to a lack of observable symptoms prior to service, continuous symptoms after service, and receipt of treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). The Board and the AOJ, as fact finders, retain the discretion to make credibility determinations and weigh the lay and medical evidence submitted. However, competent lay evidence may be rejected only if it is deemed not credible. Further, lay evidence cannot be deemed not credible solely due to the absence of contemporaneous medical evidence. The absence of such records may, however, be weighed with the other evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Record Center or any other appropriate agency or facility to obtain service treatment records associated with the Veteran's period of active duty from February 1974 to February 1977, and any additional service treatment or in-service clinical records associated with the Veteran's period of National Guard service from August 1977 to November 2001, to specifically include records from Evans Army Hospital between 1991 and 1993 relating to the low back, a hiatal hernia, or other gastrointestinal problems. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Request the Veteran to identify any outstanding treatment records pertaining to each of his claimed disabilities, and to complete an authorization and release (VA Form 21-4142) for any non-VA records. Thereafter, request copies of any identified, outstanding records for which the necessary authorization is received, specifically to include any outstanding records relating to a hiatal hernia diagnosed sometime around 1992 or 1993, and any gastrointestinal procedure performed in the 1990s. Copies of all diagnostic tests, to including any scope, colonoscopy, or sigmoidoscopy, should be requested. All requests and all responses should be documented, and all records received should be associated with the claims file. If any such records cannot be obtained after appropriate efforts, the Veteran should be notified of the missing records, the attempts made to obtain them, and allowed an opportunity to provide the records. 3. After completing the above-described development, schedule the Veteran for the appropriate VA examination(s) to determine the nature and etiology of any low back disability, hearing loss, and, if additional pertinent records are received, a gastrointestinal disorder. The audiological examination should be scheduled with an examiner other than the examiner who conducted the February 2005 VA examination. The entire claims file and a copy of this remand should be made available to each examiner for review, and such review should be noted in the report. All necessary tests and studies should be conducted. Each examiner is requested to respond to the following, as appropriate: (a) Identify any current low back disability, including but not limited to arthritis. For each diagnosis, is it at least as likely as not (probability of 50 percent or more) that such disorder was incurred in or aggravated by military service? In particular, is there any relation between any current low back disability and a spinal contusion incurred in May 1991 during a parachute landing? (b) Does the Veteran currently have hearing loss? If so, is it at least as likely as not (probability of 50 percent or more) that such disorder was incurred in or aggravated by military service? In particular, is there any relation between the current hearing loss and noise exposure during National Guard service from weapons and jet engines while performing parachute jumps? Is there any relation between the current hearing loss and the January 1979 audiological findings? (c) Identify any current gastrointestinal disorder. For each diagnosis, is it at least as likely as not (probability of 50 percent or more) that such disorder was incurred in or aggravated by military service? In particular, is there any relation between any current gastrointestinal disorder and campylobacter virus or treatment for bloody diarrhea in May 1990? (d) In responding to each of the above questions, a complete rationale must be provided for any opinion offered. The examiner(s) should consider all lay and medical evidence of record. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the report and explain why a non-speculative opinion cannot be offered. 4. After completing any further development as may be indicated by any response received upon remand, readjudicate the claims based on all lay and medical evidence of record. All raised theories should be considered for service connection. 5. If the claims remain denied, issue a supplemental statement of the case to the Veteran and his representative, which addresses all relevant law and all evidence associated with the claims file since the last statement of the case. Allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).