Citation Nr: 1754872 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-40 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.Spigelman, Associate Counsel INTRODUCTION The Veteran had honorable active military service with the United States Army from October 1966 to October 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, denying, among other issues, the claims currently on appeal. The issue of entitlement to service connection for a lumbar spine disability is addressed in the REMAND portion of the decision below. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A cervical spine disability is not etiologically related to the Veteran's active service, was not present to a compensable degree within one year of separation from active service, and was not caused or permanently worsened by a service-connected disability. 2. Bilateral hearing loss is etiologically related to the Veteran's acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in or aggravated by active service, the incurrence or aggravation of a cervical spine disability during active service may not be presumed, and a cervical spine disability is not proximately due to or aggravated by a service connected disability. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. Bilateral hearing loss was incurred in active service. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to Service Connection for a Cervical Spine Disability The Veteran has claimed entitlement to service connection for a cervical spine disability. A review of the Veteran's service treatment records (STRs) shows that at his January 1966 pre-induction examination and his September 1968 separation exam, the Veteran's spine was noted upon examination to be clinically normal. The Veteran's STRs are otherwise silent for complaints of, or treatment for, any cervical spine disability. Review of the post-service medical evidence of record indicates that the Veteran received treatment at the VA Medical Center for various disabilities. A review of the medical treatment notes of record shows that degenerative changes of the cervical spine were observed. However, there is no indication from the treatment notes of record that the Veteran was found to have a cervical spine disability as a result of his active service. At a July 2017 VA examination, the Veteran reported that he did not hurt his cervical spine in service but injured it in a 1978 logging accident. Specifically, he was injured while cutting a tree down that hit across the back of his neck. He reported having neck problems ever since then, gradually getting worse in recent decades. Based on the physical examination, the examiner diagnosed the Veteran with cervical spondylosis. The examiner opined that the Veteran's cervical spine disability was less likely than not proximately due to or the result of the Veteran's service connected knee disability. The examiner explained that the Veteran's cervical spine disability was not the sort of disability that would be caused by a knee disability, but rather a chronic progressive degenerative condition that developed over a period of many years. Furthermore, it was noted that there was no evidence of any chronic abnormal gait or other condition that could lead to the spondylosis of the cervical spine. The current examination was also negative for any significant gait disturbance related to the knees. The examiner specifically noted that the Veteran stated that he did not hurt his neck in service and that there were no complaints related to his neck in service. The examiner additionally observed that the Veteran and his wife specifically stated that his cervical spine disability was unrelated to his service-connected knee disability. The July 2017 VA examination is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As the Veteran has not submitted any contrary medical opinions, the Board finds that the VA opinion is the most probative evidence of record and that secondary service connection is not applicable in this case. While the Veteran has been diagnosed with a cervical spine disability, as noted above, there is no indication from the record that the Veteran had a cervical spine disability to a compensable degree within one year of his separation from active service. Therefore, presumptive service connection is not applicable in this case. The preponderance of the remaining evidence of record fails to suggest any other relationship between a current cervical spine disability and military service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a cervical spine disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to Service Connection for a Bilateral Hearing Loss Disability The Veteran asserts that he has a bilateral hearing loss disability as a result of acoustic trauma sustained in active service. He contends that, while serving in the Republic of Vietnam, his military occupation specialty (MOS) was to serve as a crane shovel operator. As a result, he was exposed to generators and mechanical work while in Vietnam. The Veteran's claim of noise exposure was corroborated by a May 2015 VA examination. Thus, the Board concedes that he sustained acoustic trauma while in active service. STRs show that the Veteran's hearing was only tested at 1000 Hz, 2000 Hz, and 4000 Hz while in active service. Therefore, his hearing acuity at the time of his separation cannot be determined with any certainty. Regardless, the Veteran specifically reported in his separation examination that he presently or previously had ear trouble. The Board notes that the Veteran is competent to report when he first experienced symptoms of hearing loss and tinnitus and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Also, the Board finds the Veteran to be credible in this respect. At a May 2015 VA examination, the Veteran reported the in-service noise exposure described above. Audiological testing at that time revealed that he did have a bilateral hearing loss disability for VA compensation purposes. The examiner diagnosed bilateral sensorineural hearing loss. The examiner noted that he could not provide a medical opinion as to the etiology of the Veteran's bilateral hearing loss disability without resorting to speculation. The examiner said that he based his determination on insufficient testing of the Veteran's puretone thresholds at separation. The Board finds the May 2015 VA opinion to be inadequate for adjudication purposes. In this regard, the examiner failed to consider the Veteran's reports of decreased hearing acuity while in active service and of gradually worsening symptoms since that time. As the Veteran's reports that his bilateral hearing loss disability began in service and has persisted since that time have been found competent and credible, failure to consider those statements was in error. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection for hearing loss. Lay 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify decreased hearing acuity, and his statements have been found credible. The Board concedes that the Veteran sustained acoustic trauma while in active service. The VA medical opinion of record is not a competent opinion against the claims as it is inconsistent with the other evidence of record. The Veteran has competently and credibly reported decreased hearing acuity in service. The Veteran has also competently and credibly asserted a continuity of relevant symptomatology since service. He has a current diagnosis of bilateral sensorineural hearing loss. Therefore, the Board finds that the evidence for and against the claims of entitlement to service connection for bilateral hearing loss is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. §5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a bilateral hearing loss disability is granted. REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. A review of the record shows that the Veteran was afforded a VA examination in July 2017. The examiner opined that the Veteran's lumbar spine disability was not proximately due to or the result of the Veteran's service connected knee disability. The examiner also opined that the Veteran's lumbar spine disability was less likely than not aggravated by the Veteran's service connected knee disability. The Board finds that the July 2017 medical opinion is incomplete. In this regard, the Board observes that during the July 2017 VA examination, the Veteran reported that his lumbar spine disability was the product of an injury suffered while in active service in 1967. The Board notes that the examiner only addressed whether the Veteran's lumbar spine disability was proximately due to his service connected knee disability. The Board finds that the examiner did not sufficiently consider whether it was more likely than not that the Veteran's lumbar spine disability was a result of his 1967 in-service injury. As the examiner did not adequately consider the Veteran's report of injuring his back in a 1967 incident during active service, the opinion is incomplete and, as such, is not adequate to serve as the basis of a denial of entitlement to service connection. Therefore, the Veteran should be afforded a new VA examination to determine the nature and etiology of his lumbar spine disability. Moreover, in light of the Veteran's statement that he suffered an accident while in active service that caused his lower back injury, the Board finds that the RO should investigate as to whether there are outstanding military personnel records and service treatment records that corroborate the Veteran's statement. If so, those documents should be identified and obtained before a decision is made with regard to the issue on appeal. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issue on appeal. Accordingly, the case is REMANDED for the following action: (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. Identify and obtain any pertinent, outstanding military personnel and service treatment records and associate them with the claims file. 2. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any lumbar spine disability currently present. The claims file must be made available to, and reviewed in its entirety by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently present lumbar spine disability is etiologically related to the Veteran's active service, or had its onset during active service. In forming the opinion, the examiner must specifically address the Veteran's lay statements regarding the onset and continuity of his lumbar spine disability. A complete rationale for all opinions must be provided. If any opinion cannot be provided without resort to mere speculation, the examiner should fully explain why this is the case and identify what, if any, additional evidence or information would allow for a more definitive opinion. 4. Confirm that the VA examination report and medical opinion comports with this remand and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issue on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs