Citation Nr: 1746952 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 14-01 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for diabetes mellitus II. 4. Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). In an August 2012 statement, the Veteran noted a medical certificate that addressed his service connection claims for lumbar spine, hearing loss, diabetes and hypertension, and a claim for a TDIU. However, a March 2013 report of contact shows the Veteran clarified that he did not want to file a claim for unemployability at that time. Therefore, the Board finds that a claim for TDIU has not been raised by the record and is not part of the current appeal. In a June 2017 statement received by the Board, the Veteran requested that his appeal be advanced on the docket (AOD) due to great economic hardship. This statement was construed as an AOD motion. In an August 2017 letter, the Board denied the Veteran's AOD motion. The Board notes that the medical evidence of record includes a 2010 MRI study of the lumbar spine showing a clinical correlation between the Veteran's lumbar spine disc disease and his reports of numbness and pain in his bilateral lower extremities. The record shows that the RO has not adjudicated this issue on appeal. As such, the Board does not have jurisdiction over this matter and it is referred to the RO for appropriate action. See 38 C.F.R. § 19.9(b) (2016). The issues of entitlement to service connection for diabetes and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's low back disability is etiologically related to service. 2. The Veteran's bilateral hearing loss is etiologically related to traumatic noise exposure in service. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability are met. 38 U.S.C.A. §§ 1110, 1112, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, (2016). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, as well as certain assistance duties. However, given the disposition of the appeal below, discussion of VA's compliance with those duties are not necessary, and any deficiencies in such notice or assistance are harmless. In the decision below, the Board grants the claim of service connection for low back disability and bilateral hearing loss. To the extent there are any notice defects as to the initial rating and effective date elements when effectuating the award, the Board trusts the RO will ensure they are rectified. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. 3.307, 3.309(a) (2016). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lumbar Spine Disability The Veteran seeks entitlement to service connection for low back disability. Specifically, the Veteran's asserts that his current low back disability is related to a motor vehicle accident (MVA) during service, and additionally due to wear and tear caused by his service related duties. 1. Factual Background Initially, the Board notes that the Veteran's STRs are silent as to any complaints or treatment for a back condition. The STRs do show that the Veteran was involved in an MVA around July 1970. A November 1970 STR noted that the Veteran was thrown out of a jeep and landed on his left elbow. No treatment for a back disability related to the MVA was noted. The Board additionally notes that the Veteran's separation examination indicated a normal spine; however, the examination report is missing a Report of Medical History. Post-service medical records include an August 2012 letter from the Veteran's private treating physician. The physician opined that the Veteran's lumbar spine disability was "at least as likely as not" service-connected. The physician based her medical opinion on the Veteran's service related duties as a combat engineer as well as the service related MVA. She noted that during service the Veteran used to lift, carry, load and unload heavy equipment, and that he used to build bridges. She noted that those activities put a lot of stress at the column area causing inflammatory changes promoting long term degenerative problems. With regard to the MVA, she noted that the jeep the Veteran rode in flipped several times downhill which promoted a loss of correct alignment and loss of curvature of the cervical, thoracic and lumbar lordosis putting more stress on one side of vertebras than the other which "could present disc bulging and herniation with degenerative problems." A December 2012 VA medical record shows the Veteran reported injuring his back during service as a result of a MVA in which the jeep he was driving in fell down a cliff. Current symptoms included pain across his waist, numbness of the lower extremities and tightness in the posterior thighs. Pain was reported as constant. The physician noted a thoracic spine MRI study conducted in 2010 revealing the following: multiple hemangiomas in the thoracic vertebral bodies with the largest in T8 and T9; small posterior disc herniation at the T5-T6, T6-T7 and T7-T8 levels; normal vertebral height and alignment; and normal intervertebral height and signal intensity. A 2010 lumbar spine MRI study revealed the following: multiple hemangiomas in the vertebral bodies; mild right lateral disc protrusion at L2-L3 with clinical correlation for right L2 radiculopathy and mild facet arthropathy; L3-L4 disc bulge with clinical correlation for right L3 radiculopathy; L4-L5 broad posterior central disc bulge with clinical correlation with L5 radiculopathy; mild/moderate bilateral neural foraminal narrowing and moderate facet arthropathy; and L5-S1 left foraminal disc protrusion and moderate left neural foraminal narrowing. January and February 2013 VA medical records noted central lower back pain reportedly present the past 40 years. A March 2013 VA medical record shows the Veteran reported pain in his central lumbar area with pain rated an average of 5 on a scale to 10. The Veteran further reported that pain radiated to his right lower extremity and at times would wake in the morning with pain due to not moving and changing positions while sleeping. At a June 2013 VA examination, the Veteran was diagnosed with lumbar discogenic disease. The Veteran reported lumbar spine pain since a MVA that occurred during active duty service in Germany. The Veteran also reported numbness in his feet without any radicular pattern. The examiner opined that the lumbar spine disability "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness." The examiner based his negative nexus opinion solely on a finding of "no evidence in the claims folder" for any lumbar spine condition. 2. Legal Analysis After a review of the evidence of record, the Board finds that service connection for a back disability is warranted. Initially, the Board notes that the Veteran's STRs appear incomplete as evidenced by a Report of Medical History that is missing from the Veteran's separation examination. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110 (West 2014); Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that interpretation of section 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, a May 2010 MRI study revealed degenerative disc disease involving the thoracic and lumbar spine region. Additionally, the June 2013 VA examination report noted a diagnosis of lumbar discogenic disease. Accordingly, the Veteran clearly has diagnoses involving his low back and the remaining question is whether his low back disability is related to service. As noted above, the Veteran asserts that his low back disability resulted from his duties as a combat engineer and a MVA during service. The Veteran's DD214 confirms that the Veteran served as a combat engineer. Additionally, the Veteran's STRs shows that he was involved in a MVA around July 1970 in which he was thrown from a jeep. As such, the evidence of record sufficiently evidences an in-service incident. The record also includes two conflicting medical nexus opinion; one provided by the Veteran's private physician in August 2012, and one provided by a VA examiner in June 2013. After a review of the June 2013 VA examination report, the Board finds it is inadequate. Specifically, the Board finds the rationale provided to support the negative nexus opinion inadequate as it is based on a factually inaccurate predicate; namely that the claims folder does not show evidence for any lumbar spine condition. As noted above, and as noted by the VA examiner, the Veteran has a diagnosis for a low back disability. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). It is very possible the examiner meant to state that there was no evidence in the STRs for any lumbar spine condition. However, the Board cannot attempt to interpret or extrapolate the rationale employed by the examiner on its own. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that the Board is prohibited from exercising its own independent judgment to resolve medical questions). In any event, even if the Board made such a determination, the examiner's negative nexus opinion would be based solely on a lack of in-service evidence of a back disability. The examination report shows the examiner failed to consider the Veteran's statements that he sustained injuries to his back as a result of being thrown from a jeep during a MVA, or due to wear and tear as a result of physical duties as a combat engineer. The Veteran also stated that he had back pain since service. Additionally, the examiner did not address the positive medical opinion already of record supporting the Veteran's lay statements as to etiology. The Veteran is competent to establish the presence of observable symptomatology and when they began to occur, and there is no evidence these statements are not credible, particularly as they have been consistent with his other statements and are supported by a medical opinion. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an "absolute bar" to service connection). Conversely, the Veteran's private physician provided a more thorough rationale, and she provided a full explanation as to why the Veteran's current low back disability was related to his service-related duties as a combat engineer and his service-related MVA. Therefore, the Board finds the medical opinion letter provided by the Veteran's private physician to be the most probative evidence of record. Accordingly, the Board finds the criteria for service connection for low back disability are met. The claim is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016). Bilateral Hearing Loss The Veteran asserts that he has bilateral hearing loss as a result of traumatic noise exposure during service, including arms fire. 1. Factual Background The Veteran's STRs include a July 1968 pre-induction examination that noted normal ears and drums. The examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 15 25 LEFT 15 5 5 10 15 A November 1970 separation examination also noted normal ears and drums, and further noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 - 0 LEFT 10 5 5 - 0 In an August 2012 letter, the Veteran's private physician opined that it was reasonable to assure that the Veteran's bilateral hearing loss was secondary to prolonged high intensity noise exposure during service including high frequency arms fire. In support of her opinion, the physician noted that prolonged exposure to noises of high intensity cause permanent damage in the inner ear structures which result in irreversible hearing loss. The Veteran underwent a VA examination in April 2013. The examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 40 75 75 LEFT 35 55 40 70 65 The examiner noted that the Veteran demonstrated inconsistent and exaggerated pure tone responses which were not compatible with speech reception thresholds of 20 dB for the right ear, and 25 dB for the left ear. As a result, the examiner found that the test results were not valid for rating purposes. Speech discrimination scores were listed as 100 percent bilaterally. The examiner did diagnose the Veteran with bilateral sensorineural hearing loss. With regard to etiology, the examiner opined that the bilateral hearing loss was not "as least as likely as not (50% probability or greater) caused by or a result of an event in military service." The examiner noted that prolonged exposure to high intensity military type noise levels could cause damage to auditory structures resulting in hearing loss and further noted the Veteran worked as a combat engineer for two years. Despite those recognitions, the examiner based his negative nexus opinion solely on a lack of in-service manifestation of hearing loss and cited a normal separation hearing examination. The Veteran denied any symptoms related to tinnitus. 2. Legal Analysis Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2016). The Board notes the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Competent evidence of a current hearing loss disability meeting the requirements of 38 C.F.R. § 3.385, and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Initially, the Board finds that the Veteran meets the threshold criteria under 38 C.F.R. § 3.385 for bilateral hearing loss. As noted above, during the April 2013 VA examination, the auditory threshold in each of the frequencies of 500 through 4,000 Hertz ranged from 30 to 75 dBs. Importantly, despite finding that the Veteran demonstrated inconsistent and exaggerated pure tone responses which were not compatible with speech reception thresholds, the April 2013 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. Accordingly, the first element in Shedden is satisfied and the remaining question is whether the Veteran's hearing loss is related to service. After a review of all the evidence, the Board finds that service connection for bilateral hearing loss is warranted. While the April 2013 VA examiner found that it was not "at least as likely as not (50% probability or greater) caused by or a result of an event in military service," the examiner's opinion is based solely upon a fatal premise; namely the absence of in-service evidence of hearing loss. As noted above, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford, 3 Vet. App. 87. In this regard, the Board finds the August 2012 letter from the Veteran's physician the most probative evidence of record. The Veteran's physician provided a positive nexus opinion and based her opinion on the Veteran's in-service traumatic noise exposure; traumatic noise exposure which the April 2013 VA examiner additionally found could cause damage to the auditory structures resulting in hearing loss. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. At the very least, the evidence is at least in relative equipoise with regard to a causal connection between the claimed in-service traumatic noise exposure and the current bilateral hearing loss disability. In sum, after a review of all the evidence, the Board finds that service connection for bilateral hearing loss is warranted, and the claim is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for low back disability is granted. Entitlement to service connection for bilateral hearing loss is granted. REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. In April 2010, the Veteran submitted a signed VA Form 21-4142, Authorization and Consent to Release Information to the VA. This form shows that the Veteran identified being treated by Dr. CR and JD from July 2009 to the present for diabetes and high blood pressure at a VA clinic. The Veteran also identified treatment by Dr. AC for diabetes, who appears to be a private medical provider, from January 1976 to the present. The claims file also includes a January 2012 letter from the RO notifying the Veteran that his claims for benefits filed in April 2010 was lost. Therefore, the April 2010 VA Form 21-4142 appears to be related to the Veteran's service connection claims for diabetes and hypertension. The claims file includes VA medical records evidencing treatment by Dr. CR dating from August 2009, and VA treatment records from San Juan VA medical center and Mayaguez VA medical center dating from December 2012 to June 2013. However, the claims file does not include medical records from Dr. JD or Dr. AC. Additionally, the claims file does not show the RO attempted to obtain the medical records identified by the Veteran. As such, a remand is necessary and further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A. Accordingly, the case is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, including the treatment records identified by the Veteran in the April 2010 VA Form 21-4142. 2. Then, the AOJ should undertake any further development it deems necessary. 3. Then, readjudicate the claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow an appropriate time for response. Then, return the claim 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 2014). ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs