Citation Nr: 1755035 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-00 847 ) 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 a back disorder. 2. Entitlement to service connection for bilateral hearing loss also claimed as hypoacusis. 3. Entitlement to service connection for a bilateral leg disorder, to include as secondary to a back disorder. 4. Entitlement to special monthly pension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1953 to July 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2009 and November 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. These claims were most recently before the Board in July 2013 when they were remanded for additional development. The appeal has now been returned to the Board for consideration. 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). The issue of entitlement to special monthly pension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss had onset during active service. 2. The Veteran's back disability is related to his service. 3. The Veteran's lower extremity radiculopathy is proximately due to or the result of his service-connected back disability. CONCLUSIONS OF LAW 1 The criteria for the establishment of service-connection for hearing loss have been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 2. The criteria for establishment of service-connection for a back disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for establishment of service-connection for lower a lower extremity radiculopathy, to include as secondary to a back disability have been met. 38 U.S.C.A. §§ 1101, 1131, 1134(a), 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board grants entitlement to service-connection for a back disability, hearing loss, and for a lower bilateral lower extremity disability as secondary to the back disability as the evidence is at least equipoise with respect to the fact that the Veteran's back disability is cause by his military service, his lower extremity is in turn caused by the back disability, and the Veteran's hearing loss began in-service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran 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'- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may also be granted on a secondary basis. Secondary service connection will be awarded when it is shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. See 38 C.F.R. § 3.310 (a) (2015); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). With respect to the issue of the Veteran's back and lower extremity disabilities, the Board finds that the evidence is at least equipoise as to whether these conditions are related to service. The evidence in favor of the claim comes from a December 2008 medical opinion from Dr. N.A.O where the doctor opined that the Veteran's in-service lifting of weapons weighing more than 500 pounds led to stress in the Veteran's vertebral column which led to the present back disability. The doctor went on to opine that the Veteran's back degeneration led to radiculopathy and nerve impingement of the lower extremities. On the other hand, a 2009 VA examiner opined that the Veteran's lower extremity disability was not due to service; however this opinion was based only on consideration of an in-service leg injury, and not the secondary service connection due to back addressed by Dr. NAO. A subsequent VA opinion resulting from a December 2014 VA examination indicates that the Veteran's back disability is more likely than not due to aging, and that there is no lower extremity radiculopathy. The December 2014 VA examination does not address the private opinion from Dr. NAO therefore the Board is left to its own devices to resolve the conflicting medical opinions. Since the Board is ill-equipped to make medical determinations and the conflicting opinions essentially appear in equipoise, the Board grants entitlement to service connection for a back disability and to bilateral lower extremity radiculopathy as secondary to the back disability. With respect to the Veteran's hearing loss disability, the Board grants entitlement as the Veteran is competent to report that this disability had its onset in service. There is no dispute that the Veteran has qualifying hearing loss as required by VA regulations. See November 2010 VA Medical Examination, see also July 2015 VA Medical Examination. The dispositive issue is whether the Veteran's hearing loss is related to service. In that regard, the two VA medical examiners opined that it was less likely than not that the Veteran's hearing loss was related to service as there was no evidence of an in-service incurrence. Id. Subsequent to these examinations, the Veteran submitted correspondence in May 2016 in which he indicated that he was exposed to significant noise in service, had no hearing protection while in service, and first began suffering from hearing problems in service. Following this statement, the RO granted service connection for tinnitus, and the Board sees no reason not to follow with a grant for hearing loss. The Veteran is competent to report regarding the symptoms he experienced during and post service and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board grants entitlement to service-connection for bilateral hearing loss. ORDER Service connection for bilateral hearing loss is granted. Service connection for a back disability is granted. Service connection for lower extremity radiculopathy as secondary to a back disability is granted. REMAND Although the Board sincerely regrets the additional delay that will result from remanding this claim again, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Board must remand the Veteran's pension claim as the Board is presently without adequate information to determine the Veteran's disability for the whole period on appeal. The record contained within the Board's "Legacy Content Manager Documents" in VBMS shows a May 2017 VA notification letter reflecting an adjustment to the Veteran's pension as a result of consideration of significant medical expenses. Disability pension benefits will be paid to a veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements; and who is permanently and totally disabled from nonservice-connected disability not the result of willful misconduct. See 38 U.S.C. §§ 1503, 1521. Additionally, Veterans who are not totally disabled may still receive a pension provided they are 65 years of age or older, and they meet the service requirements. See 38 U.S.C § 1513. From the record it appears that the Veteran has been appropriately awarded a pension. Pursuant to 38 U.S.C. §§ 1503, 1513, 1521. However, the record does not indicate how far back this award stretches and what amounts of income and medical expenses were considered. The Board cannot determine whether the Veteran is entitled to a greater or earlier award without a more fully developed record of the Veteran's income and medical expenses. 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. Obtain updated VA medical records. 2. Inform the Veteran that he may submit statements from himself or a third party, including any private medical providers regarding his need for aid and attendance and any disabilities the Veteran suffers from. If any private medical providers are identified by the Veteran, reasonable efforts should be made to secure releases form the Veteran for medical records and to associate these records with the Veteran's file. 3. Make reasonable efforts to develop information regarding the Veteran's income and expenses for the period on appeal as necessary for pension claim. 4. After completing the above development, readjudicate the claim. Consider whether the Veteran's income makes him eligible for a pension or pension with aid and attendance for any years on appeal. Please note that even without the additional information that should be developed based on the remand directives, current evidence shows that the Veteran's qualifying medical expenses significantly exceed his income for a portion of the period on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim 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). 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). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs