Citation Nr: 1549690 Decision Date: 11/25/15 Archive Date: 12/03/15 DOCKET NO. 10-26 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to an initial rating higher than 10 percent for degenerative disc disease of the cervical spine prior to March 24, 2012 and an initial rating higher than 20 percent thereafter. 3. Entitlement to an initial rating higher than 10 percent for left ankle avulsion fracture. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from May 1973 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2009 and July 2010 of a Regional Office (RO) of the Department of Veterans Affairs (VA). In a rating decision in April 2012 the RO increased the rating for degenerative disc disease of the cervical spine to 20 percent effective Match 14, 2012. In a rating decision in September 2014, the RO granted service connection for tinnitus and for right ear hearing loss. As the Veteran did not express disagreement with either the ratings or effective dates assigned to either of these now service-connected disabilities, no issue regarding either of these two disorders is in appellate status. A Declaration of Status of Dependents, VA Form 21-888c dated in February 2010 shows that the Veteran was previously married to S.G.W whom he divorced in July 1974. He married C.N.P. in January 1981, and a VA letter in September 2014 shows that she is his dependent spouse. A Report of General Information in October 2015 shows that the Veteran was called to confirm his upcoming Board hearing. G.L.C., who was identified as the "wife" said her "(h)usband deceased in 2010." The next day VA called again and left a message. Based on the evidence of record, G.L.C. is not the Veteran's current spouse and may in fact be his former spouse. Also, since 2010, the Veteran has appeared at VA examinations and submitted signed statements. The weight of the evidence shows that the Veteran is not the deceased husband who was referenced in the October 2015 Report. In November 2015 the Veteran failed to report for a Board hearing. This appeal was processed using the Veterans Benefits Management System (VBMS). Records in the Virtual VA paperless claims processing system also have been reviewed and considered. The issues of entitlement to higher initial ratings for degenerative disc disease of the cervical spine and for left ankle avulsion fracture are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's left ear hearing loss was incurred during his active service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). In light of the favorable determination to grant service connection for left ear hearing loss, VA's duties to notify and assist are deemed fully satisfied, and there is no prejudice to the Veteran in proceeding to decide the issue. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service 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 a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Sensorineural hearing loss (organic disease of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran's claim for service connection for left ear hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz)is 40 decibels (dB) or greater; where the auditory thresholds for at least three of these frequencies are 26 dB or greater; or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Considering the claim for service connection for left ear hearing loss, in light of the record and the governing legal authority, the Board finds that the evidence is at least in equipoise on the question of a nexus. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). First, the Veteran has left ear hearing loss as defined by 38 C.F.R. § 3.385. See November 2010 audiological examination that shows pure tone thresholds for the left ear, in decibels, at 5000, 1000, 2000, 3000, and 4000 Hz were as follows: 20, 30, 35, 35, and 30 thereby establishing that at least three of the frequencies were greater than 26 decibels. Second, the Veteran contends that he had in-service noise exposure. His statements are competent and credible as his DD-214 shows that he was a radio and television broadcast specialist. Under 38 U.S.C.A. § 1154(a), due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record and all medical and lay evidence. Third, service treatment records show that the Veteran had left ear hearing loss on separation examination in September 1978 as pure tone thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 45, 50, 50, 40, and 40. Although a VA examiner in December 2010 opined that moderate hearing loss found on the separation audiogram was not permanent as current audiometric testing indicates only a mild hearing loss in both ears, the evidence nevertheless shows that the Veteran has had left ear hearing loss both during service and during the current appeal period. Further, the Veteran reported that the onset of his hearing problems was during service when he was exposed to acoustic trauma while working in Radio and TV broadcasting. He denied having any significant non-military occupational noise exposure. See November 2010 audiological examination. The Veteran explained that in October 1978 he denied having hearing loss because he did not realize that he had it. He noted that this was prior to his separation from service. The Board finds that the Veteran's statements are competent, credible, and probative of the presence of in-service noise exposure and diminished hearing during service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Lastly a private audiologist in May 2011 noted that the configuration of the Veteran's hearing loss appeared to be conductive. Nevertheless, she concluded that the Veteran was subjected to excessive noise levels during service that can cause hair cell damage which may result in hearing loss. In summary, the Board finds that the evidence establishes that the Veteran was exposed to significant noise during service, that he currently has left ear hearing loss, and that his left ear hearing loss was incurred in service. In reaching this decision, the Board recognizes that there are unfavorable opinions of record. On VA examination in May 2010 the examiner was unable to determine the Veteran's auditory thresholds and Maryland CNC speech recognition score and noted that the Veteran was uncooperative. The Veteran in January 2011 explained that he was not uncooperative but was unable to hear nor understand the voices and sounds during the examination. In the addendum opinion in December 2010, the examiner opined that an opinion could not be rendered regarding the Veteran's hearing loss without resorting to peculation. With respect to speculative opinions, the Court of Appeals for Veteran Claims (Court) has pointed out that an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); see also Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) ("The examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection"). Also, the results of the private audiogram dated in May 2011 were provided in graphic representations without interpretation as to the exact pure tone thresholds found at the appropriate frequencies. Kelly v. Brown, 7 Vet. App. 471 (1995) (the Board should not discount audiograms just because they are in graphical form and can remand uninterpreted audiograms for interpretation). It is unclear whether pure tone thresholds readings were conducted at 3,000 Hertz. Without pure tone thresholds readings at 3000 Hertz, this private audiology report would not be adequate or suitable for determining whether the Veteran has left ear hearing loss. 38 C.F.R. § 38 C.F.R. § 3.385. Accordingly, the Board finds that the evidence is at least equipoise on the question of a nexus between service and the current left ear hearing loss. Resolving reasonable doubt in the Veteran's favor, the claim of service connection for left ear hearing loss is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for left ear hearing loss is granted. REMAND The Veteran was last afforded VA examinations of his cervical spine and left ankle in March 2012. Although he has not specifically asserted that these disabilities increased in severity since that last examination, the fact remains that the findings provided are now well over three years-and indeed almost four years old. Also of import to the Board in this regard is the fact that the claims folder contains no records of medical treatment for, or evaluation of, either of these service-connected disabilities after the March 2012 VA examinations. Thus, the Board finds that more current examinations are necessary. Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (determining that the Board should have ordered a contemporaneous examination of the veteran because a 23-month-old examination was too remote in time to support adequately the decision in an appeal for an increased rating). Lastly, and prior to obtaining any opinion, the Veteran's assistance should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to his claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for an appropriate VA examination to determine the current nature and extent of the service-connected degenerative disc disease of the cervical spine. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All necessary testing should be conducted. After interviewing and examining the Veteran, the examiner should describe in detail all current manifestations of the service-connected degenerative disc disease of the cervical spine to include the following: a.) Range of motion of the cervical spine in degrees to include forward flexion and any functional loss due to pain or painful motion (supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion) as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. Any additional functional loss should be expressed in terms of additional limitation of motion. The examiner should also address whether there is additional loss of motion associated with flare-ups or on repetitive use. b). The examiner should indicate whether there is favorable or unfavorable ankylosis of the cervical spine or unfavorable ankylosis of the entire spine. c.) Any objective neurological abnormalities, other than radiculopathy of the upper extremities must be addressed. The examiner should note whether such abnormalities cause complete or incomplete paralysis, neuritis or neuralgia of any nerve. If there is incomplete paralysis, neuritis, or neuralgia of any nerve, the examiner should identify the nerve affected and describe such paralysis as mild, moderate, moderately severe, or severe. d.) The examiner is asked to describe the frequency and duration of any incapacitating episodes due to the degenerative disc disease of the cervical spine, requiring bed rest prescribed by a physician and treatment by a physician, over a 12 month period. A rationale for all opinions should be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), a deficiency in the record (i.e. additional facts are required), or a lack of necessary knowledge/training of the examiner. 3. Also, schedule the Veteran for an appropriate VA examination to determine the current nature and extent of the service-connected left ankle avulsion fracture. The claims file must be made available to be reviewed by the examiner in conjunction with the examination. All indicated testing, including X-rays, should be conducted. Following an interview with, and examination of, the Veteran, the examiner should describe in detail all current manifestations of the service-connected left ankle disability, to include any ankylosis and limitation of motion of this joint. The examiner should address the range of motion in degrees of dorsiflexion and plantar flexion and any functional loss due to pain or painful motion as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. The examiner must address at what point pain sets. Any additional functional loss should be expressed in terms of the degree of additional limitation of motion. The examiner also is asked to determine whether the Veteran has moderate or marked limited motion in his left ankle and whether he has malunion of the os calcis or astragalus that is manifested by moderate or marked deformity. A rationale for all opinions should be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), a deficiency in the record (i.e. additional facts are required), or a lack of necessary knowledge/training of the examiner. 4. When the development requested has been completed, the AOJ should readjudicate the claims for higher initial ratings for degenerative disc disease of the cervical spine and for left ankle avulsion fracture. If any benefit sought is not granted, the Veteran and his representative must be furnished an SSOC. The Veteran should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, or to report for a scheduled VA examination, may impact the decision made. 38 C.F.R. § 3.655 (2015). He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs