Citation Nr: 1753570 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-09 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in June 2017. A transcript of the hearing has been uploaded in the Veteran's claims file. The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Giving him the benefit of the doubt, the Veteran has bilateral hearing loss and tinnitus that are etiologically related to his active duty service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran asserts that he has bilateral hearing loss and tinnitus as a result of in-service noise exposure. The Veteran's contentions regarding noise exposure are supported by the information contained in his personnel records. The Veteran's DD 214 confirms that he was an infantryman. The Board will concede in-service noise exposure. Post-service treatment records show complaints of, and treatment for, hearing loss and tinnitus. The Veteran was afforded a VA examination in December 2011 with additional addendum opinions. The VA examiner initially provided speculative opinions due to not having access to the Veteran's claims file. Subsequent addendum opinions were negative with respect to whether the Veteran's hearing loss and tinnitus were related to service. The VA examiner in part based these opinions on the fact that the Veteran's hearing was "normal" close to service separation. The Board finds these opinions are not persuasive. The Court has specifically held that a Veteran's normal hearing at separation does not necessarily indicate that the Veteran experienced no in-service loss of hearing acuity. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In light of the Veteran's credible statements regarding in-service noise exposure, and his current diagnoses of hearing loss and tinnitus, the Board gives the Veteran the benefit of the doubt and finds that service connection for bilateral hearing loss and tinnitus is warranted. Further discussion of the evidence is simply not warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND Outstanding Records-The Veteran indicated at his June 2017 BVA hearing that there are outstanding VA and private treatment records pertaining to his back. He testified that he was treated by Dr. Cooper, an outpatient treatment clinic at Holy Cross Hospital, the VA Hospital in West Palm Beach, and an outpatient clinic in Pompano, Florida. Specifically, he noted that he began treatment for his back at the Pompano outpatient clinic shortly after leaving service in the early 1980's. A 60 day extension was requested at his hearing so that he would have time to submit additional records. In an August 2017 statement, the Veteran's representative requested that an additional 30 days be awarded so that he could obtain and submit evidence (for a total of 90 days). The 90 days since his hearing have now passed, and the Board has not yet received additional evidence. The Board finds that an attempt to obtain these outstanding records should be made. In this regard, to avoid further delays in this case, it would be of great help to the VA if the Veteran himself submitted these outstanding medical records pertaining to his back. VA Examination-The Board notes that the Veteran's service treatment records do not reflect treatment for his back. However, the Veteran testified at his June 2017 BVA hearing that he began experiencing back problems in service while playing "combat football." He reported that he was ordered to participate in no physical exercise for three weeks. An August 2008 VA X-ray reflects moderate degenerative changes of his lumbosacral spine, grade 2 spondylolisthesis L4 over L5, and disc space narrowing noted at the L4-L5 and L5-S1 levels. Based on his statements of an in-service back problems, current diagnosis of a lumbar spine disability, and credible allegations of continuity of symptomatology, the Board finds that a remand for a VA examination and opinion of the claim of service connection for a low back disability is necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. After obtaining the appropriate release from the Veteran, obtain all outstanding records from Dr. Cooper, the outpatient treatment clinic at Holy Cross Hospital, the VA Hospital in West Palm Beach, and the outpatient clinic in Pompano, Florida. Any negative search results should be noted in the record. Regardless of whether the Veteran responds, all outstanding VA treatment records should be obtained. It would be of great help to VA if the Veteran himself would obtain these records and submit them to VA (or indicate they are not available), as this would greatly expedite the case. 2. After the development in Remand paragraph 1 has been completed, schedule the Veteran for an examination to determine the nature and etiology of his low back disability. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any low back disorder had its onset during the Veteran's active service or is otherwise causally related to his service, to include playing "combat football." For purposes of this opinion, the VA examiner is to presume that the Veteran played "combat football" at some point during service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs