Citation Nr: 1304044 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 08-33 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a neck disorder. 3. Entitlement to service connection for a back disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970 and had service in the Republic of Vietnam from December 1969 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2006 and April 2009 decisions rendered by the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In the September 2006 decision, the RO denied the claims for service connection for hearing loss and tinnitus. In the April 2009 decision, the RO denied the claims for service connection for a back disorder and a neck disorder. A hearing was held on May 26, 2010, in Winston-Salem, North Carolina, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. This Board previously remanded the case for further development in January 2011. That development was completed in compliance with the remand directives, and the case has since been returned to the Board for appellate review. The Veteran's claim of service connection for tinnitus was granted in a December 2011 rating decision. Therefore, that issue is no longer on appeal before the Board, and no further consideration is necessary. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to service connection for a back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has been shown to have bilateral hearing loss that is related to his military service. 2. The Veteran has been show to have a neck disorder that is related to his military service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. Resolving all reasonable doubt in favor of the Veteran, a neck disorder was incurred in active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In the decision below, the Board has granted the Veteran's claims for service connection for bilateral hearing loss and a neck disorder. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, supra (concerning varicose veins); see also Jandreau, supra (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Bilateral Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. In this case, the Veteran contends that he has bilateral hearing loss due to his exposure to loud noises during his active military service. Having carefully considered the claim in light of the record and the applicable law, with resolution of the doubt in favor of the Veteran, the Board finds that service connection is warranted for hearing loss. The Veteran service treatment records show that he was provided an enlistment examination in April 1969. During that examination, the Veteran's puretone threshold values, in decibels, were as follows: 500 HERTZ 1000 HERTZ 2000 HERTZ 3000 HERTZ 4000 HERTZ Right ear -5 -5 -5 10 0 Left ear -10 -5 20 15 25 The examining physician indicated that the Veteran had impairment of hearing; however, the Board notes that the Veteran did meet the VA standards for hearing loss at that time. No additional service treatment records show any complaints of or treatment for hearing loss. The Veteran was later provided a separation examination in November 1970 during which his puretone threshold values, in decibels, were as follows: 500 HERTZ 1000 HERTZ 2000 HERTZ 3000 HERTZ 4000 HERTZ Right ear 0 0 0 0 0 Left ear 10 5 0 0 0 Those findings do not demonstrate hearing loss as defined by 38 C.F.R. § 3.385, and thus, the Veteran did not have bilateral hearing loss at the time of his separation. Nevertheless, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has stated that he did not have any problems with his hearing prior to service, and he has contended that he was exposed to extremely loud noises without any hearing protection during his military service. He has also asserted that he was held for a few days at the time of his discharge with questions regarding his hearing loss and indicated that he was told that he would be permitted to leave if he said he could hear. The Veteran stated that his hearing gradually worsened along with his tinnitus in the years since service. The Veteran is considered competent to relate a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2). Indeed, the RO conceded military noise exposure in the December 2011 rating decision granting service connection for tinnitus. In addition, the May 2011 VA audiological examination found that the Veteran has a current hearing disability that satisfies the criteria of 38 C.F.R. § 3.385. In this regard, the May 2011 audiogram showed that the Veteran's puretone threshold values, in decibels, were as follows: 500 HERTZ 1000 HERTZ 2000 HERTZ 3000 HERTZ 4000 HERTZ Right ear 30 30 50 65 60 Left ear 35 35 75 70 70 His speech recognition scores were 88 percent in the right ear and 84 percent in the left ear. Thus, the remaining question pertaining to service connection is whether the Veteran's current bilateral hearing loss is related to his military noise exposure. Regarding the etiology of the Veteran's current hearing loss, the May 2011 VA examiner opined that his hearing loss is less likely than not caused by the in-service noise exposure based on the audiological data in the Veteran's service treatment records. The examiner explained that "there was no threshold shift noted at exit examination, in fact, there was an improvement in hearing at frequencies that are typically most affected by noise. Even when considering the remote possibility of ASA to ISO-ANSI conversion of thresholds, he did not show a significant threshold shift." Given her rationale, the May 2011 VA examiner appears to have based her opinion solely on the fact that the Veteran did not have hearing loss in service. It would have been helpful had the VA examiner brought her expertise to bare in this manner regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from noise exposure or acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause. In addition, the examiner did not address the Veteran's lay statements that he was told he had hearing loss at the time of his separation and continued to experience hearing problems since that time. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). There is also no reason to doubt the credibility of the Veteran's reported history other than the lack of contemporaneous medical evidence documenting such complaints. The Board may not reject the credibility of the Veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In this case, the Veteran's reported history has remained consistent. Thus, the Board finds his lay statements regarding the onset of his hearing loss to be credible. The Board further observes that the United States Court of Appeals for Veterans Claims (Court) has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, for the reasons described above, the Board concludes that there is an approximate balance of positive and negative evidence in this case as to whether the current bilateral hearing loss in this case is the result of acoustic trauma in service and has been present since that time. Accordingly, the Board finds that there is a reasonable doubt as to whether the Veteran currently has bilateral hearing loss that manifested during his period of service, and the Board will resolve that doubt in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Neck disorder The Veteran has contended that he injured his neck during service. Specifically, he has stated that he ran into a door and hit his head and neck while running from incoming fire. He has asserted that he has had neck pain since that his period of service. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a neck injury or disorder. In fact, his November 1970 discharge examination shows a normal clinical evaluation of his head, neck, and spine. Nevertheless, the Veteran is currently service-connected for posttraumatic stress disorder (PTSD), based, in part, on the incident in which he ran into a door and struck his head while escaping incoming fire. Therefore, the Board accepts his account on the in-service injury as credible. The Veteran's post-service treatment records also show that he had surgery on his cervical spine in 2000 and has been diagnosed with degenerative disc disease of the cervical spine. Therefore, the question before the Board is whether the evidence shows a nexus between the in-service injury and his current disorder, or alternatively, if the evidence shows a continuity of symptomatology since service. The Veteran contends that he sought treatment from a chiropractor in 1971, but records of that treatment are unavailable. A June 2000 medical record shows that the Veteran underwent surgery for cervical spondylosis, cervical disc herniation, and cervical radiculopathy, yet no information was provided on the etiology of these disorders. On an October 2005 cervical spine imaging report, the Veteran added a handwritten note indicating that this testing was performed as a result of a motor vehicle accident in which the Veteran was involved. He stated that he broke his arm in the accident, but that he had been having problems with his neck since service. In a March 2006 record, the physician indicated that the Veteran had degenerative joint disease secondary to working for the railroad for four years and walking on ballast rocks. Multiple records dated from 2006 through 2009 show treatment for chronic cervical spine pain. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in May 2010. He testified that he injured his neck while running from incoming fire during service in Vietnam. He stated that he had pain at that time, but did not seek treatment during service. He also reiterated that he first sought treatment from a chiropractor in 1971, but was unable to obtain those records. The Veteran also submitted a letter from L.S., D.C. (initials used to protect privacy), dated in October 2010. Dr. S. stated that he had treated the Veteran for neck pain and stiffness for the past 20 years. He noted that the Veteran was a patient of D.W., D.C., before starting treatment with him. The Veteran's primary complaint was persistent neck pain for many years following his military service. The Veteran underwent a VA examination in January 2011. The examiner diagnosed him with degenerative disc disease of the cervical spine and opined that the Veteran's chronic neck pain was not caused by or a result of his in-service injury. In so doing, the examiner cited the prolonged time period between discharge and the aggravation of symptoms. The examiner also noted his 35-year employment history as a railroad engineer and a motor vehicle accident in which the Veteran was involved in the mid-1980's and 1990's. However, the Board notes that the examiner did not address the Veteran's own lay statements describing the onset of his neck disorder. As noted above, there is no medical evidence that the Veteran complained of neck pain in service, and a clinical evaluation of his spine was normal at separation from service. However, in his written statements, the Veteran has asserted that he first experienced neck pain as a result of an in-service injury. He also reported that he sought treatment in 1971 for his neck pain, which would have been within one year of his discharge. The Board finds the Veteran to be competent and credible in his statements, as there is no reason to doubt him other than the lack of contemporaneous medical evidence. See Jandreau, 492 F. 3d at 1372; Buchanan, 451 F. 3d at 1331. Moreover, the statement by Dr. S. strongly supports the Veteran's contentions that he sought treatment for neck pain shortly after his discharge from service. Thus, for the reasons described above, the Board concludes that there is an approximate balance of positive and negative evidence in this case as to whether the current neck disorder in this case is the result of an injury in service and has been present since that time. Accordingly, the Board finds that there is a reasonable doubt as to whether the Veteran currently has a neck disorder that manifested during his period of service, and the Board will resolve that doubt in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Subject to the provisions governing the award of monetary benefits, service connection for bilateral hearing loss is granted. Subject to the provisions governing the award of monetary benefits, service connection for a neck disorder is granted. REMAND The purpose of this remand is to obtain clarification from the Veteran as to whether he desires to proceed with his claim of service connection for a low back disorder or withdraw his appeal. In this regard, the Veteran submitted a February 2012 statement in which he stated, "I disagree with your denial decision concerning back and neck injury and pain." However, in the same statement, the Veteran stated the following: "Stop, I reconsidered after applying the 'Lincoln Theory' concerning application of the reasonable doubt doctrine in the SSOC. I agree that my lower back was fine when I left service and I have no medical reason to assume that the lower back injury has anything to do with my service to our country. As much as I disagree with your decision concerning hearing and neck claim; the insanity has to cease. Therefore, relative to the lower back decision only, I agree." Thus, the Veteran made contradictory statements in February 2012, and it is unclear as to whether he wanted to withdraw the issue of entitlement to service connection for a back disorder. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). Withdrawal may be made by the Veteran or his authorized representative. 38 C.F.R. § 20.204(a). In the February 2012 statement, the Veteran indicated that he agreed with the denial of benefits for his low back disorder thereby removing the case in controversy requirement. However, he did not specifically indicate an intent to withdraw his claim. Therefore, clarification from the Veteran is necessary prior to proceeding with the adjudication of this claim. Additionally, in the February 2012 statement, the Veteran indicated that, although his back disorder did not begin in service and he does not believe that it is directly related to service, he was advised by his physician that it could be related to his neck disorder. In the above decision, the Board has granted service connection for a neck disorder. Therefore, if the Veteran indicates an intent to proceed with his claim of service connection for a low back disorder, an opinion is necessary regarding secondary service connection. Specifically, under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service- connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran was afforded a VA examination of the spine in January 2011 at which time the examiner opined that his back disorder was not incurred during active service. However, no opinion was offered as to whether his back disorder is secondary to his neck disorder. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must contact the Veteran to determine if he intends to proceed with his claim of service connection for a back disorder. 2. If the Veteran wants to pursue his claim for service connection for a low back disorder, the RO/AMC should ascertain whether the Veteran has received any VA, non-VA, or other treatment for a back disorder that is not evidenced by the current record. The Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO/AMC should then obtain these records and associate them with the claims folder. 3. After obtaining any identified records, the RO/AMC should refer the Veteran's claims folder to the January 2011 VA examiner, or if unavailable to another suitably qualified VA examiner, for a clarifying opinion as to the etiology of any low back disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran has a current low back disorder that is either caused by or permanently aggravated by his service-connected neck disorder. In rendering his or her opinion, the examiner should specifically consider the following evidence: * A March 2006 treatment record showing that the Veteran has degenerative joint disease secondary to working for the railroad * A January 2011 record from Dr. F. M., which states that the Veteran's osteoarthritis of the dorsal spine is due to his post-service employment at the railroad where the Veteran worked in the yard and walked on the rocks. * The Veteran's February 2012 statement in which he denies injuring his low back in service, but states that his physician advised him that "an injury to the back can affect the entire region." A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Thereafter, the RO/AMC should review the claims files and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. If the issue remains on appeal, the RO/AMC should readjudicate the claim of service connection for a back disorder. If any of the benefits sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case with reasons and bases for the decision. The Veteran and his should also be given an appropriate opportunity to respond thereto. 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs