Citation Nr: 1528912 Decision Date: 07/06/15 Archive Date: 07/15/15 DOCKET NO. 10-21 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a disability of the cervical spine. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for a sleep disorder. 4. Entitlement to service connection for a left leg disorder. 5. Entitlement to service connection for a right leg disorder. 6. Entitlement to service connection for depression. 7. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for hypertension. 8. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity (LLE). 9. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity (RLE). 10. Entitlement to a rating in excess of 20 percent for spondylosis of the thoracolumbar spine. 11. Entitlement to a compensable rating for left ear hearing loss. 12. Entitlement to a rating in excess of 10 percent for tinnitus. 13. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the right wrist. 14. Entitlement to an effective date earlier than May 28, 2014, for grant of service connection for radiculopathy of the LLE. 15. Entitlement to an effective date earlier than May 28, 2014, for grant of service connection for radiculopathy of the RLE. REPRESENTATION Veteran represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that in relevant part denied service connection for spondylosis of the cervical spine (claimed as osteoarthritis) and for hearing loss in the right ear. The Veteran was scheduled to testify before the Board in a videoconference hearing from the RO in April 2011, but he failed to report for the hearing. He has not explained his absence and has not requested that the hearing be rescheduled. The Board will accordingly proceed with the case as though the request for hearing had been withdrawn. See 38 C.F.R. § 20.704(d) (2014). In July 2014 the Board remanded the issues of entitlement to service connection for a cervical spine disorder, service connection for right ear hearing loss, and service connection for a right elbow disability to the Agency of Original Jurisdiction (AOJ) for additional development. A January 2015 rating decision granted service connection for a right elbow disability. Accordingly, this issue is no longer in appellate status. As discussed in the Remand section below, the RO issued a rating decision in January 2015 that denied service connection for sleep disorder, disorders of the left and right legs, and depression; denied reopening a previously-denied claim of entitlement to hypertension; continued current ratings for the service-connected thoracolumbar spine disability, tinnitus, left ear hearing loss and right wrist disability; and, granted service connection for radiculopathy of the LLE and RLE. The Veteran has submitted a March 2015 Notice of Disagreement (NOD) in regard to all issues in the rating decision, including the initial ratings and effective dates for those disabilities for which service connection was granted. The NOD cited above also asserts disagreement with the effective dates of award for the service-connected left ear hearing loss, thoracolumbar spine disability, traumatic arthritis of the right wrist and hypertension. If by "effective date of award" the Veteran is asserting entitlement to an earlier date for a higher rating, such review is inherent in the evaluation process. If the Veteran is asserting entitlement to an earlier effective date for service connection, the effective dates of service connection for these disabilities were established by prior rating decisions that have become final. Once a decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE), because any other result would vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296 (2006). When such a freestanding claim is raised, such an appeal should be dismissed. Rudd at 299-300. The Board has accordingly not included those issues on the title page. The Board's decision in regard to service connection for disability of the cervical spine is set forth below. The other issues identified on the title page are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran's diagnosed spondylosis of the cervical spine is not shown to be incurred in or otherwise etiologically related to service, and the most probative medical opinion of record states the disorder is not related to service. CONCLUSION OF LAW The requirements to establish service connection for a disorder of the cervical spine have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2014). Here, the RO sent the Veteran compliant VCAA notice in March 2009, and the Veteran had ample opportunity to respond prior to the August 2009 rating decision on appeal. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. The record includes service treatment records (STRs), VA treatment records, private treatment records, and VA examination reports. The Veteran was scheduled for a hearing before the Board per his request, but he failed to report for the hearing. The Veteran has not identified any further existing records that should be obtained before the appeal is adjudicated. The Board previously determined that additional medical examination was warranted before the appeal for service connection for a cervical spine disorder could be adjudicated, and remanded the case back to the AOJ for that purpose. The requested examination was performed in September 2014. The Board has reviewed the examination report and finds the AOJ substantially complied with the requirements articulated in the Board's remand instructions. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board also finds that the medical evidence of record is sufficient at this point for the Board to adjudicate the appeal in regard to this issue. Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of this issue on appeal. Evidence and Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records (STRs) show no complaint of an injury to the cervical spine in service. The Veteran had a separation examination in June 1967; in the self-reported Report of Medical History the Veteran endorsed a history of recurrent back pain; the examiner noted that the Veteran had experienced back pain in November 1966 but was currently alright. The corresponding Report of Medical Examination showed the spine and other musculoskeletal was characterized as "normal" on examination. In November 1967, immediately prior to his actual separation, the Veteran signed a statement attesting that his medical condition had not changed since the examination. The RO issued a rating decision in July 2009 that deferred all issues claimed as "osteoarthritis," including the cervical spine, for additional development. Thereafter, the Veteran had a VA joints examination in July 2009 in which he reported in relevant part that he noticed neck pain with decreased range of motion beginning in 1999; he attributed his symptoms to injuries in service. Based on physical examination, including X-rays, the examiner diagnosed cervical spine spondylosis. The examiner expressed an opinion that the Veteran's claimed disorders, including cervical spine, are related to service. The examiner cited as rationale that STRs do not reveal any chronic diagnoses of these conditions and there is no indication of injuries with follow-up care until 2009. The RO thereupon issued the August 2009 rating decision on appeal denying service connection for cervical spine spondylosis. The Board reviewed the file in July 2014 and found that the opinion of the VA medical examiner in July 2014 regarding the cervical spine is internally inconsistent in that it supports a positive opinion with a negative rationale. The Board directed the AOJ to afford the Veteran with a new examination and opinion. Thereafter, the Veteran had a VA examination of the cervical spine in September 2014, performed by a physician who reviewed the claims file. Following examination the examiner stated an opinion that the claimed cervical spine disorder is not likely due to service. As rationale the examiner stated that during interview the Veteran denied having had neck problems in service and also denied any current neck pain or issues. The examiner stated that review of the Veteran's treatment record showed no complaints of neck pain. The VA and private treatment notes associated with the file are significant for recurrent treatment of lumbosacral spine complaints including lumbar facet joint syndrome, lumbar degenerative disc disease and lumbar radiculitis. However, as noted by the examiner, the treatment notes are silent in regard to treatment for cervical spine complaints. Review of the evidence above shows the Veteran has been diagnosed with a cervical spine disorder; i.e., spondylosis. Accordingly, the first element of service connection - medical evidence of a disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). This is the essence of the third part of the Davidson analysis. In this case there is no credible evidence of a neck injury in service. The Veteran initially asserted that all his claimed joint disorders are related to injuries in service, but when he was interviewed by the VA examiner in September 2014 he specifically denied neck problems in service. The Board concludes the Veteran is not shown to have had a cervical spine injury or disorder during service. Turning to medical opinion, the opinion of the VA examiner in July 2009 appears to support service connection, but this opinion is contradicted by the opinion of the VA examiner in September 2014. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully-articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board find in this case that the opinion of the VA examiner in September 2014 is the more probative of the two conflicting opinions cited above. As the Board noted in its July 2014 remand, the July 2009 opinion is internally inconsistent with the cited supporting rationale. In contrast, the VA examiner in September 2014 provided an opinion with consistent supporting rationale. "It is the factually accurate, fully articulated, sound reasoning for the conclusion ... that contributes probative value to a medical opinion." Nieves-Rodriguez , 22 Vet App 295, 304. Whereas the Veteran is not shown to have had an injury or disorder of the neck during service, and whereas the most probative medical opinion of record states that the currently-diagnosed cervical spine disorder is not related to service, the Board finds that the criteria for service connection are not met and the claim must be denied. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt rule, but because the preponderance of the evidence is against the claim that doctrine does not apply. Gilbert, 1 Vet. App. 49, 54; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for a disability of the cervical spine is denied. REMAND Unfortunately, the issue of entitlement to service connection for right ear hearing loss must once again be remanded, as the Agency of Original Jurisdiction (AOJ) did not comply with the Board's previous remand instructions. In its July 2014 remand the Board noted a July 2009 addendum opinion in which the examining VA audiologist stated that right ear hearing loss was not likely due to service because an audiogram at separation from service was normal and noise exposure does not cause delayed-onset noise exposure. The Board found this opinion to be inadequate because the examiner had not recorded or considered the Veteran's account of when his hearing loss began. The Board remanded the issue for additional examination, and specified that the examining audiologist must include a detailed description of the Veteran's self-reported history in his or her account. In January 2015 the examiner provided an opinion that essentially parroted the July 2009 opinion that the Board had found inadequate; the examiner also did not relate the Veteran's account of his history as instructed by the Board. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order; where the remand orders of the Board were not complied with, the Board itself errs in failing to insure compliance; in such situations the Board must remand back to RO for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the AOJ did not substantially comply with the requirements articulated with the Board's remand, the Board must return to issue to the AOJ for corrective action. As noted in the Introduction, the RO issued a rating decision in January 2015, and the Veteran has submitted a timely NOD to that decision. Remand is required to enable the Agency of Original Jurisdiction (AOJ) to issue a Statement of the Case (SOC) on these issues. Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOC, the claims should be returned to the Board only if the Veteran perfects the appeals in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following actions: 1. Issue to the Veteran and his representative an SOC on the following issues: entitlement to service connection for a sleep disorder; entitlement to service connection for left and right leg disorders; entitlement to service connection for depression; whether new and material evidence has been received to reopen a previously-denied claim of service connection for hypertension; entitlement to an initial rating higher than 20 percent for radiculopathy of the LLE; entitlement to an initial rating higher than 10 percent for radiculopathy of the RLE; entitlement to a rating higher than 20 percent for spondylosis of the thoracolumbar spine; entitlement to a compensable rating for left ear hearing loss; entitlement to rating higher than 10 percent for tinnitus; entitlement to rating higher than 10 percent for traumatic arthritis of the right wrist; and, entitlement to an effective date earlier than May 28, 2014, for service connection for radiculopathy of the LLE and RLE, so that he may have the opportunity to complete an appeal on these issues (if he so desires) by filing a timely substantive appeal. These issues should only be returned to the Board if a timely substantive appeal is filed. 2. Afford the Veteran with an examination to determine the etiology of his right ear hearing loss. The examiner must review the claims file. The examiner must also record the Veteran's account of the onset and severity of his hearing loss symptoms. The examiner is reminded that the Veteran is considered to be credible in reporting his symptoms during and after service, unless his report is inconsistent with contemporaneous clinical records or is medically implausible. Following interview of the Veteran and performance of all appropriate tests, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran's claimed right ear hearing loss is etiologically related to service. The examiner should provide a full rationale for any opinion asserted, to include discussion of the Veteran's subjective history. If the examiner is unable to provide an opinion without resorting to speculation, the reasons why this is so should be stated. 3. The AOJ should also perform any additional development indicated. 4. Then, readjudicate the issue of entitlement to service connection for right ear hearing loss. If the benefit continues to be denied, issue the Veteran and his representative a Supplemental Statement of the Case and afford them an appropriate period in which to respond before the case is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matters 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 2014). ______________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs