Citation Nr: 1327303 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 06-13 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to a compensable evaluation for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to April 1977. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). The issues of service connection for left ear hearing loss and an increased rating for right ear hearing loss are remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's currently diagnosed cervical spine degenerative disc disease cannot be reasonably disassociated from his military service. CONCLUSION OF LAW The criteria for service connection for a cervical spine degenerative disc disease are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by granting the issue of entitlement to service connection for degenerative disc disease of the cervical spine. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In this case, the Veteran states that he injured his cervical spine in 1976 when he fell from a military vehicle. The Veteran reports that he received treatment for his injuries at "Hayes" hospital in California. He claims that since that injury he has continued to have cervical spine symptomatology. Service treatment records show a March 1976 report that the Veteran incurred trauma to the lumbar spine on two occasions, with one of these occasions involving lifting a heavy object. Additional service treatment records dated from March 1976 to July 1976 show that he received treatment at the U.S. Army hospital located in Ft. Ord, California. Silas B. Hayes Army Hospital is located in Ft. Ord, California. The Veteran was put on a physical profile in July 1976 due to a diagnosis of an acute back strain. Service treatment records are negative for any findings or complaints of a cervical spine disorder Post-military private medical records show that the Veteran underwent cervical spine fusion surgery at the C1 to C2 levels in September 1985, following an August 1985 work-related neck injury. A September 1985 medical record shows os odontoideum. During a February 2005 VA spine examination, the Veteran reported that he sustained injuries during service when he fell from a military vehicle. He stated that he was seen by medical staff, that he was off duty for two weeks, and that he was then placed on light duty for several weeks. The examiner noted that the claims file was not available for review at that time of the examination. No relevant diagnosis or physical findings were reported with regards to the cervical spine. A March 2005 computed tomography (CT) scan of the Veteran's cervical spine revealed status post surgical fusion of C1 through C3, as well as separation of the odontioid from the body at the C2 level. The examiner commented that this may have represented an old fracture from previous trauma, although an acute trauma could not be excluded in the presence of recent trauma. Os odontoideum was indicated as another less likely consideration. The CT scan also revealed multilevel degenerative and osteoarthric changes, degenerative disc disease at C5/6, mild canal stenosis, and subluxation of C6 on C7, with ligamentous injury not excluded. In a March 2005 addendum report, the February 2005 VA examiner noted that the Veteran underwent a cervical disc fusion in 1986 due to a work-related injury. Following the review of this evidence, the examiner opined that it was "at least as likely as not" that the Veteran's current disc disease of the cervical spine was not related to his military service, but was instead due to a documented work-related injury. The examiner did not provide the medical basis for the opinion or discuss the Veteran's report of continuous symptoms since service. At a VA spine examination in September 2008, the Veteran reported having neck pain that increased in approximately 1986 when he underwent surgery for a possible fracture or possible congenital abnormality. He reported that he underwent an additional surgery, but was unsure if his neck healed. Following the physical examination and review of the claims file, the examiner assessed degenerative disc disease. The examiner stated that the Veteran's neck problem did not appear to be service related. No rationale was provided in support of this opinion. A September 2008 addendum note shows that the VA examiner reviewed films from a radiological examination of the Veteran's cervical spine completed that same month. The examiner concluded that there was unequivocal evidence of an os odontoideum, which was probably the reason for the Veteran's cervical spine fusion. Degenerative disc at C5-C6 was diagnosed. The examiner commented that the degenerative disc had probably been aggravated by the fusion C1 through C3. No additional opinion regarding the etiology of the Veteran's cervical spine condition was provided in light of the radiologic findings. In a March 2009 addendum, the September 2008 examiner noted that the Veteran underwent a neck operation in 1986 for a congenital condition identified as os odontoideum. The examiner noted that a fusion in the neck aggravates and accelerate disc disease at adjacent levels. The examiner concluded that the Veteran's adjacent arthritis in the neck had been aggravated by the cervical fusion. However, the examiner did not provide any medical rationale to support this opinion or give any consideration to the Veteran's competent lay statements regarding a continuity of cervical spine symptomatology since service. As directed by the September 2012 Remand, the Veteran was afforded an additional VA examination in March 2013 to determine the etiology of his cervical spine disorder. The examiner indicated that the claims file was reviewed and noted the Veteran's reported history of incurring a neck injury in service due to a fall from a military vehicle. The Veteran reported that he was treated at Hayes hospital in California, was placed on light duty, and was later given a physical profile. The examiner also noted that the Veteran underwent cervical spine surgery in 1987. The clinical examination revealed a diagnosis of degenerative disc disease at C5-C6. The examiner opined that the Veteran's cervical spine degenerative disc disease "was at least as likely as not" incurred or caused by his claimed in-service injury. The examiner noted the Veteran's report that he sustained injury and that he was treated at Hayes Hospital in California during service. Given the foregoing, the Board finds that the medical opinions of record and the lay statements have placed the evidence in a state of equipoise regarding whether the Veteran's current cervical spine disorder is related to his military service. The medical evidence includes the most recent March 2013 VA opinion related the Veteran's cervical spine degenerative disc disease to his claimed in-service injury. The favorable evidence also includes the Veteran's statements regarding a neck injury in service and neck symptomatology since that time. Although his reports are not documented in the available service treatment records, the Veteran is capable of reporting his in-service cervical spine symptoms and military experiences. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The evidence of record also includes the March 2005 and March 2009 VA opinions that the Veteran's current cervical spine disorder is not related to his military service. However, the examiners did not take into account the Veteran's statements regarding the injury to his cervical spine and a continuity of symptomatology thereafter. Moreover, the VA examiners did not provide detailed rationales to support their opinions against the claim. See Bloom v. West, 13 Vet. App. 185, 187 (1999) (finding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Thus, the Board finds that the March 2005 and March 2009 VA opinions are of less probative weight when compared to the other evidence of record. Here, although the March 2009 opinion supports the existence of a congenital cervical spine disorder identified as os odontoideum prior to the Veteran's entrance onto active duty, the Veteran was not found to have a spine disorder on an examination for entrance onto active duty and the evidence does not clearly and unmistakably establish that he had a cervical spine condition before entering active duty. 38 U.S.C.A. § 1111 (West 2002). Therefore, the presumption of soundness has not been rebutted. Given this, the Board finds that the medical and lay evidence has placed the record in equipoise as to whether degenerative disc disease of the cervical spine is related to his military service, and accordingly, the Board resolves this issue in favor of the Veteran. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for cervical spine degenerative disc disease is granted. REMAND Most recently, in September 2012, the Board remanded the Veteran's claim for service connection for left ear hearing in order to obtain an addendum opinion from a June 2012 VA examiner who previously provided an opinion in this case. Specifically, the Board directed the June 2012 examiner to provide additional explanation and rationale for her June 2012 conclusion that the Veteran's left ear hearing test on separation was valid in light of the noted improvement in his hearing acuity, to include consideration of the Veteran's acknowledged in-service noise exposure. The Board also directed the examiner to provide a copy of the publication the examiner relied upon in rendering the June 2012 opinion, specifically identified in the June 2012 examination report as "Noise and Military Service: Implications for Hearing Loss and Tinnitus," by the Institute of Medicine in 2006. In an April 2013 addendum report, the June 2012 examiner provided detailed rationale in support of the previous conclusion that the Veteran's left ear hearing test at separation was valid. In response to the Board's request for a copy of the source referenced in the June 2012 opinion, the examiner responded that a link to source had been provided. The link was identified as follows: "http://books.nap.edu/openbook.php?record_id=11443&page=R1." The examiner noted that this was a digital copy of the source and that a hard copy of this source could not be cut and pasted into the addendum report. The examiner noted, however, that the provided link was fully capable of being cut and pasted into any web browser. The examiner also noted that additional sources were relied upon in providing the April 2013 addendum opinion, sources which were identified as follows: (1) "Handbook of Clinical Audiology, Fifth Edition. EDITOR: Jack Katz[.] PUBLISHER: Lippincott, Williams, and Wilkins[,] ISBN: 0-683-30765-7"; (2) "Hearing Disorders (3rd Edition). EDITOR: Jerry Northern. ISBN-10: 0205152260| ISBN-13: 978-0205152261"; and (3) "Audiologist's Desk Reference: EDITOR: James W. Hall and H. Gustav III Mueller[,] ISBN13: 978-1565937116 ISBN10: 1565937112[.]" Although the June 2012 examiner has identified the publications which were relied upon in rendering the June 2012 and April 2013 opinions, the Board notes that copies of these sources have not been associated with the claims file. Thus, the sources are not available for review by the Board and have not been considered by the RO. Although not an adequate substitute for the medical publication, the internet source identified in both the June 2012 and April 2013 is not accessible via the link provided by the examiner. Accordingly, the left ear hearing loss claim must be again remanded so that the RO can obtain copies of all publications and outside sources referenced in the June 2012 and April 2013 VA reports. As for the Veteran's remaining claim, the claim for an increased rating for right ear hearing loss is inextricably intertwined with the issue of entitlement to service connection for hearing loss in the left ear. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other.) According, the claim for an increased rating is remanded along with the service connection claim. Accordingly, the case is remanded for the following action: 1. The RO must contact the VA examiner who provided the June 2012 VA examination report and the April 2013 addendum report and request that the examiner provide printed copies of all relevant pages from the sources referred to in the June 2012 and April 2013 reports. The RO must advise the examiner that links to the identified sources or ISBN numbers are not sufficient in this regard, as actual copies of the relevant information from these sources must be included in the Veteran's claims file and/or electronic records. 2. Thereafter, the RO must review the claims file and ensure that the requested development has been completed in full. If there has not been substantial compliance with regards to the above directive, the RO must implement corrective procedures. 3. After completing the above actions, and any other development deemed necessary, the RO shall readjudicate the claims on appeal. If any of the claims remain denied, the Veteran and his representative must be provided with a supplemental statement of the case and given an opportunity to respond thereto. The appeal must then 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 and 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