Citation Nr: 1321949 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 08-09 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, claimed as muscle spasms. 2. Entitlement to higher initial ratings for bilateral hearing loss, evaluated as 20 percent disabling from March 8, 2012, and noncompensably (0 percent) disabling prior to that date. ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from February 1985 to February 1996, from November 1996 October 2003, from October 2003 to October 2005, with additional service in the Puerto Rico Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from July and October 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In the July 2006 rating decision, the RO denied service connection for radiculopathy and muscle spasm claimed as a cervical condition. In the October 2006 rating decision, the RO granted service connection for left ear sensorineural hearing loss and assigned an initial noncompensable (0 percent) rating, effective December 12, 2005. The RO found that it was granting service connection for left ear hearing loss because right ear hearing was within normal limits. During the pendency of the appeal the case was transferred to the RO in New York, New York. In a February 2010 rating decision, the New York RO granted service connection for lumbar discogenic disease and lumbar myositis (claimed as low back pain and radiculopathy). This decision represents a full grant of the benefit sought with respect to the claim for service connection for radiculopathy. In a June 2012 rating decision, the RO granted a 20 percent rating for bilateral hearing loss, effective March 8, 2012. Despite the grant of this increased rating, the Veteran has not been awarded the highest possible evaluation, and his claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993). In his March 2008 VA Form 9 (substantive appeal), the Veteran requested a hearing before a Veterans Law Judge at the RO. In February and April 2013 letters, the RO informed the Veteran that his hearing was scheduled in May 2013. Although the hearing notification letters were not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling. His hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's complete service treatment records are not of record. While some dental treatment records from his period of service from June 2004 to October 2005 are of record, other service treatment records from this period of service are not. The RO has made many attempts to obtain the Veteran's service treatment records. In particular, the Veteran's complete service treatment records, from 1996 until October 31, 2005, were requested from the Puerto Rico National Guard in August 2007. The Puerto Rico National Guard responded in August and September 2007 that the Veteran's health record was not found in its office. The RO also requested the Veteran's service records from the Records Management Center (RMC) in August 2007. The claims file includes an August 2007 Defense Personnel Records Image Retrieval System (DPRIS) print-out indicating that there were no records matching a request for the Veteran. In October 2007, the U.S. Army Human Resources Command (address code 11) responded to a request for separation documents for the Veteran's periods of service from February 1985 to February 1996; from November 1996 to October 2003; and from October 2003 to June 2004 by stating that DPRIS was negative. In October 2009, the RO requested service treatment records from the Veteran's "second (2nd) period of service" from November 1996 to October 2003 from the RMC. The RMC responded that no records were found. In June 2010, the RO made a formal finding on the unavailability of the Veteran's complete Army and Army National Guard service treatment records, noting that the service treatment records for the Veteran's initial period of service had been obtained. However, the October 2007 response from the U.S. Army Human Resources Command does not list the Veteran's period of service from June 2004 to October 2005 and the October 2009 request to the RMC also did not specifically request records from this period of service. While the October 2009 request did indicate that the Veteran retired on November 1, 2005, the RO specifically requested records from his period of service from November 1996 to October 2003. Accordingly, an additional request for any service treatment records from this period of service should be made to the National Personnel Records Center (NPRC), the RMC, and the U.S. Army Human Resources Command. 38 C.F.R. § 3.159(c)(2) (2012). VA treatment records contained in the Virtual VA e-folder include a June 2008 audiology consultation. This note states that audiological test results can be found in "TOOLS/AUDIOGRAM EDIT/OPTIONS/VA-FORM 10-2364" and indicates that this testing revealed a mild sloping high frequency sensorineural hearing loss, bilaterally. Unfortunately, these audiological test results are not currently available for the Board's review. Another audiology consultation, from September 2010, again states that audiological test results can be found in "TOOLS/AUDIOGRAM EDIT/OPTIONS/VA-FORM 10-2364." The audiologist reviewed the previous test results from June 2008 and commented that there was no significant change in hearing since the last evaluation. The audiological test results from September 2010 are also not currently available for the Board's review. As the reports of audiological testing conducted in June 2008 and September 2010 are pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA also has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). The April 1999 service treatment record regarding the Veteran's motor vehicle accident reflects that he was initially treated by a civilian doctor. These records are not currently of record, and should be requested on remand. See 38 C.F.R. § 3.159(c)(1). The most recent VA treatment records currently available for the Board's review from the VA New York Harbor Healthcare System are dated in August 2012 while the most recent VA treatment records currently available for the Board's review from the VA Caribbean Healthcare System are dated in June 2010. On remand, the AMC/RO should obtain any more recent VA treatment records. Finally, the service treatment records include a January 1985 hospital report in Spanish. While this document appears to relate to a head injury, as the claims are being remanded for other reasons, an English translation of this document should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's service treatment records from his last period of active duty (from June 2004 to October 2005) from the NPRC, the RMC, the U.S. Army Human Resources Command, and any other appropriate agency. If no additional service treatment records are obtainable (or none exist), the Veteran should be notified and the record clearly documented. 2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his cervical spine disorder and/or hearing loss. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for: (1) any records of VA audiological testing dated in June 2008 and September 2010; (2) any records from a civilian doctor regarding treatment following the Veteran's April 1999 motor vehicle accident; (3) any additional treatment records from the VA New York Harbor Healthcare System dated since August 2012; and (4) any additional treatment records from the VA Caribbean Healthcare System dated since June 2010. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 3. Obtain an English translation of the January 1985 hospital report included in the Veteran's service treatment records. 4. After all available records have been associated with the claims file and/or Virtual VA e-folder, forward the claims file to the physician that conducted the February 2008 VA examination, if available, for a supplemental medical opinion. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner must provide an opinion as to whether the Veteran's current cervical spine disorder began during active service or is related to any incident of service. Although the examiner must conduct a review of the claims folder, the Veteran asserts that he has a current cervical spine disorder related to service, and has described experiencing cervical muscle spasms during and since service. Service treatment records document that the Veteran fell on ice in February 1993, and complained of shoulder and hip pain. This service treatment record makes no mention of a complaint of neck pain. In June 1994, the Veteran presented with a neck injury incurred while playing baseball. X-ray of the cervical spine was negative. The assessment was muscle spasm. Clinical evaluation of the neck and spine was normal on examination in April 1996. The Veteran was involved in a motor vehicle accident in April 1999. Examination revealed good range of motion of the neck with no tenderness to palpation. X-ray revealed straightened cervical lordosis consistent with a paravertebral muscle spasm. The assessment was status post motor vehicle accident. Clinical evaluation of the spine was normal on examination in January 2001. Post-service VA treatment records reflect that, in November 2005, nine days after separation from service, the Veteran presented with complaints of neck pain for four days. The assessment was neck muscle spasm. The Veteran was afforded a VA examination to evaluate his claimed cervical spine disorder in February 2008. He described cervical pain with an onset in 1989 or 1990, although he did not have good recall of the particular circumstances and initial manifestations of his disease or injury. He stated that he had slipped on ice and fell sustaining trauma to the cervical area. He reported going to sick call. He reported cervical spasms since that time. He added that he had gone to sick call on several occasions due to recurrent cervical pain, but had only sought treatment for cervical pain once since discharge from service. He described his condition as being intermittent, with periods of remission. The examiner ordered an open MRI of the cervical spine, an EMG, and X-rays; however, he commented that, for unknown reasons, the Veteran failed to report for these tests. The examiner acknowledged review of the claims file and service treatment records, noting that the June 1994 X-rays of the cervical spine, obtained after the Veteran's cervical spine baseball injury, were negative. He also noted that the Veteran had injured his cervical spine during the April 1999 motor vehicle accident and received VA treatment for neck pain in November 2005. He opined that since, in nearly 20 years, the Veteran only went to sick call on a few occasions in regard to his cervical spine, the Veteran's conditions in service were acute and transitory and resolved with the treatment given. He opined that any current cervical disorder was not caused by or the result of or etiologically related to any event in service. The VA examiner's negative opinion was based on a lack of in-service treatment for cervical spine complaints, as he commented that the Veteran only went to sick call on a few occasions in nearly 20 years of service. However, as discussed above, service treatment records from the Veteran's last period of active duty, from June 2004 to October 2005, are not of record. The law holds that lay evidence cannot be found to lack credibility merely because it is unaccompanied by corroborating contemporaneous medical evidence. The law also holds that a VA examination may be inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. The Veteran reported to the February 2008 VA examiner that he experienced cervical spasms (although intermittently) since service. He has also reported neck pain since service. As a layperson (i.e., one without medical training) the Veteran is competent to describe symptoms of cervical spasms and neck pain. The examiner should therefore consider the Veteran's reports of neck pain and cervical spasms since service. The examiner's attention is called to the following evidence of record: (1) Service treatment records document a neck injury incurred while playing baseball in June 1994, at which time X-ray of the cervical spine was negative and the assessment was muscle spasm. (2) In April 1999, the Veteran was involved in a motor vehicle accident. Examination of the neck at that time revealed good range of motion with no tenderness to palpation. X-ray revealed straightened cervical lordosis consistent with a paravertebral muscle spasm. (3) In November 2005, nine days after separation from service, the Veteran presented with complaints of neck pain for four days. The assessment was neck muscle spasm. (4) An October 2009 X-ray of the cervical spine revealed straightening of the cervical spine which might be reactive to muscle spasm as well as degenerative changes at C5-C7. (5) During VA treatment in December 2009, the Veteran complained of left neck pain for one week, and denied a history of trauma; however, he reported to his primary care provider later the same day that he had neck and left shoulder pain for the past month exacerbated in recent days due to his work as a mailman. In rendering the requested opinion, the examiner must also consider the Veteran's reports of neck pain and cervical muscle spasms since service. For example, during VA treatment in September 2009, the Veteran reported that he had experienced right cervical pain for 16 years, since in-service trauma. The examiner is advised that the Veteran is competent to describe symptoms of cervical spasms and neck pain. The examiner is also advised that UNLESS ADDITIONAL SERVICE TREATMENT RECORDS ARE OBTAINED ON REMAND, treatment records from the Veteran's most recent period of active duty (June 2004 to October 2005) are not presently of record. A complete explanation for all opinions expressed must be set forth in the examination report. If further examination of the Veteran is necessary, arrange for the Veteran to undergo VA examination to obtain the above-noted opinion. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claims, considering all evidence of record. If any benefit sought remains denied the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for a response. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ Vito A. Clementi 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).