Citation Nr: 1752236	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  13-34 917	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to service connection for a lumbar spine disability, to include pudendal neuralgia. 

2.  Entitlement to an initial compensable disability rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran






ATTORNEY FOR THE BOARD

S. Vang, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1964 to September 1969.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  

The Veteran testified in a video conference Board hearing in July 2017 before the undersigned Veterans Law Judge.  A transcript of the proceeding is associated with the claims file. 

In August 2017, the Veteran submitted a Motion to Advance on the Docket (AOD) due to advanced age.  The undersigned is granting the motion and advancing the appeal on the docket based upon advanced age.  38 C.F.R. § 20.900(c) ("advanced age" is defined as 75 or more years of age).

The issue of entitlement to an initial compensable disability rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's pudendal neuralgia was incurred in and is related to active service. 


CONCLUSION OF LAW

The criteria for service connection for pudendal neuralgia have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Discussion of VCAA compliance is not required as the Veteran's claim for a lumbar spine disability is granted, as discussed further below.  

Analysis

In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016).  In order to establish service connection for a claimed disorder, there must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Service connection may also be established when the evidence shows that a veteran had a chronic condition in service or during the applicable presumptive period.  38 C.F.R. § 3.303(b) (2016).  Where a Veteran served ninety days or more of active service, certain chronic diseases such as arthritis may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  Alternatively, for those listed chronic conditions, a showing of continuity of symptoms affords another route to service connection.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).

The first Hickson element of service connection is met because the Veteran has a current diagnosis of pudendal neuralgia, as noted in the July 2012 VA examination.  

The second Hickson element of service connection is met as service treatment records (STR) indicate that the Veteran experienced in-service back injuries. A June 1967 STR noted that the Veteran had a back injury lasting for 1 week.  An October 1967 STR provided a diagnosis of nerve root irritation of the right lumbar due to several falls while riding swift boats.  It was noted that the Veteran experienced discomfort in right buttock radiating to post lateral aspect of right thigh.  He was treated with bedrest and released after 7 days with a diagnosis of mechanical low back syndrome.  Entrance and separation examinations are negative for any back injuries.  

The third Hickson element of service connection requires medical evidence of a nexus.  The record contains competing medical nexus opinions, to include an October 2012 VA opinion, an April 2017 private opinion from Dr. R.H., and a May 2017 private opinion from Dr. R.E. 

A VA examination was provided in July 2012, and an addendum opinion was provided in October 2012.  The examiner opined that pudendal neuralgia was less likely than not incurred in or caused by the claimed in-service event.  He remarked there was no chronic medical condition on active duty,  that there was only one documented back injury during active duty in October 1967, that a May 1972 examination noted that the Veteran did not have current problems with his back, and that multiple service examinations did not mention any back pain.  The examiner observed that civilian records established a chronic medical condition from 1990 to present, but noted that there was a fall on ice in 2003 to the buttocks that could cause the current progressive nature of his symptoms.  Finally, he stated that there was no evidence of further treatment of a nerve root irritation of the right lumbar or any condition that could be clinically construed as a similar or related condition to the in-service injury. 

In an April 2017 private opinion, Dr. R.H. opined that it is more likely than not that the injury sustained in October 1967 in Chu Lai, Vietnam is the cause of the Veteran's chronic lower back and pelvis problems that exist today.  Dr. R.H. stated that he has been the Veteran's primary care physician since March 2007, and is familiar with the Veteran's pudendal neuralgia. 

In a May 2017 private opinion, Dr. R.E. opined that it is more likely than not that the injury suffered in October 1967 in Chu Lai, Vietnam is the cause of the Veteran's lifelong chronic back problems.  He noted that the Veteran presented him with the October 1967 STR, and noted the Veteran's reports of rough seas and numerous falls onboard the boat.  

The Board notes that both private opinions contain little supporting rationale, particularly in comparison to lengthy rationale provided by the October 2012 VA examination.  

However, the entirety of the record indicates that the Veteran has experienced continuous symptoms since separation.  The Veteran has testified, fairly consistently, that his back complications began in service and continued since then.  A 1983 private treatment record notes that the Veteran reported severe back pain from bending in 1975, and that he was also hurt in Vietnam.  An impression of lumbosacral strain was noted.  A September 1983 radiology report observed slight anterior wedging at L1 that was "not of recent origin."  An October 1991 private treatment record notes that the Veteran provided a longstanding history of back pain, to include a diagnosis of a herniated disc in 1975.  A September 2001 radiology report noted increased bone density at the S4 region that suggested new bone formation in relation to an old fracture.  An October 2001 private record notes that the Veteran fell on ice in the winter of 1996 or 1997.  A May 2003 private treatment record noted a report of ischial pain with repeated episodes for 10 years.  The clinician remarked that this pain was likely a product of degenerative changes with other contributing mechanisms of injury, to include a fall during a helicopter incident in Vietnam and a more recent fall on ice two years prior.  A February 2013 letter from R.M., a physician assistant, indicates that he met the Veteran in 1975, that medical records were unavailable dating back to 1975, but that he recalled that the Veteran constantly complained of a burning pain in the right ischium bursa over the years.  

After careful consideration of the record, and resolving doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise.  Though the positive opinions contain little supporting rationale, they are supported by the remainder of the record, which indicates that the Veteran experienced symptoms in service and continuously since service.  Indeed, post-service medical records and testimony show that the Veteran's complaints of back pain have been consistent with respect to manifestation of pain in Vietnam, the nature and location of the pain (ischial or sacral region), and the repeated episodes of pain over time.  

To the extent that the October 2012 examiner found that a lumbar spine disability was not related to service, the Board notes that the examiner did not account for the June 1967 STR documenting an-service back injury nor any of the 1983 post-service medical records indicating that the Veteran reported injury in Vietnam and shortly after service.  As such, the evidence is at least in equipoise.  

When the claim is in equipoise, the Veteran prevails. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.  Accordingly, service connection for a lumbar spine disability is warranted and the claim is granted.  


ORDER

Entitlement to service connection for a lumbar spine disability, to include pudendal neuralgia, is granted. 

	(CONTINUED ON NEXT PAGE)


REMAND

The Veteran seeks an initial compensable rating for bilateral hearing loss.  During the July 2017 hearing, he testified that his hearing has worsened since the last examination.  Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see 38 C.F.R. § 3.327(a) (2016).  As the evidence indicates that the Veteran's symptoms may have worsened, the Veteran should be afforded a new VA examination to assess the current severity of his disability.

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain any outstanding VA treatment records not already of record relating to the claim.  

2.  Afford the Veteran an audiological examination to determine the nature and severity of his service-connected bilateral hearing loss.  The electronic claims file should be forwarded to the examiner for review.  All indicated studies should be performed.  The examiner is requested to describe the functional effects caused by the Veteran's hearing loss disability.

3.  Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim.  If the requested benefit remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matter 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).



______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs