Citation Nr: 1322152 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 10-19 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the cervical spine, to include as secondary to service-connected residuals of a shrapnel wound to the left shoulder. 2. Entitlement to service connection for right upper extremity radiculopathy, to include as secondary to degenerative joint disease of the cervical spine. 3. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to an initial compensable disability rating for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971, including combat service in the Republic of Vietnam. His decorations include the Combat Infantry Badge, the Purple Heart Medal and the Bronze Star Medal with "V" device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In September 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In October 2010, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. Therefore, the Board may properly consider such newly received evidence. The issues of (1) entitlement to service connection for right upper extremity radiculopathy, to include as secondary to degenerative joint disease of the cervical spine, (2) entitlement to an initial disability rating in excess of 30 percent for PTSD, and (3) entitlement to an initial compensable disability rating for bilateral sensorineural hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Degenerative joint disease of the cervical spine had its onset in service. CONCLUSION OF LAW Degenerative joint disease of the cervical spine was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS With respect to the claim of entitlement to service connection for degenerative joint disease of the cervical spine, the Board grants the Veteran's claim in full. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran contends in his September 2010 testimony before the Board that his cervical spine condition began in 1969 as a result of jumping out of helicopters, and a helicopter crash, in support of combat operations in Vietnam. See transcript, pp. 14-16. He further testified that he had no neck problems prior to his service in Vietnam, and no post-service neck injuries. Id., p. 16. The Veteran also testified that he has had chronic neck problems since the 1969 injuries in Vietnam. Id. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board finds that the evidence supports an award of service connection for degenerative joint disease of the cervical spine. First, the October 2008 VA examiner diagnosed the Veteran with that disorder during the pendency of the claim. Second, as discussed above, the Veteran testified in September 2010 that he sustained an in-service incurrence of degenerative disc disease of the cervical spine in support of combat operations in Vietnam in 1969. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability that resulted during service from the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, there must be the evidence of a current disability and a causal relationship between the current disability and the in-service combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the Veteran testified in September 2010 that his degenerative disc disease of the cervical spine was incurred as a result of jumping out of helicopters, and a helicopter crash, in support of combat operations in Vietnam in 1969. His DD Form 214 establishes that he served in combat in Vietnam. Consequently, the Board concludes that not only is his cervical spine injury from jumping out of helicopters and a helicopter crash presumed, but so is the degenerative disc disease disability that resulted during service from the in-service combat injury. Third, the Board finds that there is a nexus between the in-service cervical spine injury and the present disability. As listed above, the Veteran testified in September 2010 that he has had chronic neck problems since his injuries in Vietnam in 1969. Consistent with his testimony, the Veteran's post-service treatment records include private MRI reports from November 1999 and December 1999 in which his physicians diagnosed degenerative changes at C4-C5 and C5-C6 with bilateral bony neural foraminal encroachment, as well as cervical spondylosis, greatest at C6-C7. Despite the absence of a finding of a cervical spine injury or disorder in the Veteran's service treatment records, he reports that he has experienced such symptoms during and since service. The Veteran is competent to report on all things of which he has personal knowledge derived from his own senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159(a)(2). The Board finds that the combination of the Veteran's documented evidence of combat service, his diagnosed degenerative changes in his cervical spine in 1999 based on MRI evidence, his diagnosed degenerative joint disease of the cervical spine by the October 2008 VA examiner, and his consistent and very credible testimony are sufficient to link his degenerative disc disease of the cervical spine to his injuries incurred in support of combat operations in Vietnam. Significantly, no medical opinion to the contrary is of record. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for degenerative joint disease of the cervical spine. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for degenerative joint disease of the cervical spine is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received, and take appropriate measures to obtain those records. Any additional, pertinent VA treatment records, including those from the VAMC in Manchester, New Hampshire, should either be made accessible on Virtual VA or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Service Connection for Right Upper Extremity Radiculopathy As to the claim for service connection for right upper extremity radiculopathy, to include as secondary to degenerative joint disease of the cervical spine, VA initially provided the Veteran with a joints examination in October 2008. The Veteran reported having one episode of neck pain radiating into his right arm, with aching and pain lasting for two days. The October 2008 VA examiner provided no opinion or rationale as to whether the Veteran has right upper extremity radiculopathy, or, if so, whether it is related to his cervical spine degenerative joint disease. The Veteran subsequently testified in September 2010 that his right arm condition began about 3 years ago-i.e., in 2007. See transcript, p. 9. He reported that when symptomatic, his right arm goes numb and tingly, he is unable to hold a pen, and his wrist aches. Id., p. 11. The Veteran also testified that his private physician, Dr. Mitsopoulos, told him that his right arm condition is secondary to his cervical spine disability. Id., pp. 12-13. As discussed above, the Veteran is currently in receipt of service connection for his degenerative joint disease of the cervical spine. While some records from Dr. Mitsopoulos are in the claims file, there is no record of his diagnosing the Veteran with right upper extremity radiculopathy or linking it to the Veteran's degenerative joint disease of the cervical spine. The claims file does include a March 2003 private treatment record from Dr. Goumas, M.D., documenting a right wrist fracture with some wrist pain radiating down to the fingers. Initial Disability Ratings for PTSD and Bilateral Sensorineural Hearing Loss The Veteran testified at his September 2010 videoconference hearing that his PTSD and bilateral sensorineural hearing loss have worsened since the most recent VA examinations, which were conducted in October 2008. See transcript, pp. 5, 8. Moreover, those examinations are now more than four years old. As such, the evidence indicates that the Veteran's PTSD and bilateral sensorineural hearing loss have increased in severity since the last examination and VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of those disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his right upper extremity radiculopathy, PTSD, and bilateral sensorineural hearing loss that are not already of record, including a report from Dr. Mitsopoulos diagnosing the Veteran with right upper extremity radiculopathy and explaining why it is secondary to his service-connected degenerative joint disease of the lumbar spine. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit lay statements of the nature and onset of his right upper extremity radiculopathy symptoms, and of the nature and severity of his PTSD and bilateral sensorineural hearing loss, from himself as well as from other individuals who have first-hand knowledge of such symptoms. He should be provided an appropriate amount of time to submit this lay evidence. 3. After associating all outstanding records regarding the claimed right upper extremity radiculopathy with the claims folder, obtain a medical examination with opinions as to the following questions: a) Does the Veteran have right upper extremity disability, to include radiculopathy? If so, please opine as to whether it at least as likely as not that the disability is related to or had its onset in service. b) If not, are the Veteran's reported numbness, aches, and pain in his right arm and wrist attributable to any other diagnosis? c) Was the Veteran's right upper extremity radiculopathy (or other applicable diagnosis, if any) at least as likely as not caused by his service-connected degenerative joint disease of the lumbar spine? In offering any opinion, the examiner should take into consideration all the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles, and objective medical findings. The examiner should specifically consider the March 2003 private treatment record from Dr. Goumas, M.D., documenting a right wrist fracture with some wrist pain radiating down to the fingers, as well as any records submitted by Dr. Mitsopoulos. All opinions expressed should be accompanied by a supporting rationale. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After obtaining any outstanding treatment records regarding the Veteran's PTSD, provide him with an appropriate VA examination to determine the nature and severity of that disability. The claims file must be made available to and be reviewed by the examiner and all necessary tests should be conducted. The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record, particularly the Veteran's previous VA examination conducted in October 2008, his VA treatment record from September 2010, and any lay and clinical evidence suggesting that his overall PTSD symptoms have worsened, resulting in more severe occupational and social impairment. The examiner should also discuss the impact that the Veteran's PTSD has on his ability to secure and maintain substantially gainful employment. 5. After obtaining any outstanding treatment records regarding the Veteran's bilateral sensorineural hearing loss, provide him with an appropriate VA examination to determine the nature and severity of that disability. The claims file must be made available to and be reviewed by the examiner and all necessary tests should be conducted. The examiner should report all pertinent findings. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record, particularly the Veteran's previous VA examination conducted in October 2008 and any lay and clinical evidence suggesting that his overall bilateral sensorineural hearing loss has worsened, resulting in more severe occupational and social impairment. The examiner should also discuss the impact that the Veteran's bilateral sensorineural hearing loss has on his ability to secure and maintain substantially gainful employment. 6. Then, after providing the Veteran adequate time to respond, and after conducting any further development deemed warranted, readjudicate the appeal. If any claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs