Citation Nr: 1801153	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-20 893	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for service-connected status post anterior discectomy and anterior fusion of C5-6 and C6-7, post laminectomy of C5-6 (hereinafter referred to as the "service-connected cervical spine disability").

2.  Entitlement to a rating in excess of 10 percent for service-connected intervertebral disc syndrome affecting the left upper extremity with circumflex nerve involvement (hereinafter referred to as the "service-connected IVDS/right shoulder disability").  

3.  Entitlement to service connection for right ear hearing loss.  

4.  Entitlement to service connection for tinnitus.  


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A.J. Turnipseed, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from November 1975 to April 1979 and from November 1985 to March 1991.  

This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above.  

In June 2017, the Veteran testified before the undersigned Veterans Law Judge via video conference.  A transcript of the hearing is associated with the claims file.  

As a preliminary concern, the Board finds that, with respect to the increased rating claim for the service-connected cervical spine disability, the period for review begins February 18, 1998 and continues to the present.  In this regard, review of the record reveals that, in April 1992, the Veteran filed a claim seeking service connection for neck injury, after which the RO awarded an initial 30 percent rating for a cervical spine disability, effective April 13, 1992.  See June 1992 rating decision.  In November 1994, the Veteran was informed that the RO proposed to reduce the rating for the service-connected cervical spine disability.  The Veteran failed to appear for hearings scheduled in conjunction with the proposed reduction and, thus, in a March 1995 rating decision, the RO reduced his disability rating to 10 percent, effective July 1, 1995.  In February 1998, the Veteran requested that his initial rating be reinstated and after he was afforded a VA examination, the RO issued a June 1998 rating decision (which was issued in July 1998) which increased his disability rating to 20 percent, effective February 18, 1998.  In August 1998, the Veteran submitted a timely notice of disagreement (NOD) requesting a higher rating and that the reinstated, higher rating be made effective from the date his benefits were terminated, i.e., July 1, 1995.  Thereafter, in a February 1999 rating decision, the RO determined that clear and unmistakable error was performed in the June 1998 rating decision and codesheet, which reflect that the reduced 10 percent rating was effective from July 1, 1995, whereas the correct effective date of the reduced 10 percent rating was May 1, 1995.  

The RO did not, however, address the Veteran's disagreement with the rating assigned in June 1998.  Instead, it appears the RO did not respond properly to the NOD by issuing a statement of the case, permitting an appeal to the Board.  Because the Veteran filed a timely NOD, the June 1998 rating decision did not become final.  Given the lack of finality of the June 1998 rating decision, the Board's inquiry will include consideration of whether the service-connected cervical spine disability warrants a rating higher than 20 percent since February 18, 1998.  

The issue of entitlement to service connection for a right arm/shoulder disability as secondary to the service-connected cervical spine disability has been raised by the record in the Veteran's June 2017 hearing testimony, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The issues of entitlement to an increased rating for the service-connected cervical spine and IVDS disabilities, as well as service connection for tinnitus, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.



FINDING OF FACT

The competent and credible evidence of record demonstrates that the Veteran's current right ear hearing loss is likely related to his military service.  


CONCLUSION OF LAW

The criteria for service connection for right ear hearing loss have been met.  38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.303, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking service connection for hearing loss affecting his right ear, which he has asserted is related to his military noise exposure.  

During a February 2011 VA audiological examination, the VA examiner noted the Veteran's military noise exposure and conceded that he experienced acoustic trauma during service.  However, audiometric testing only revealed sensorineural hearing loss in the left ear, as defined by VA regulation in 38 C.F.R. § 3.385, whereas the thresholds in the right ear were normal.  After examining the Veteran, the examiner noted that the audiograms conducted an entry and separation from service showed significant shifts in the Veteran's hearing during service and, thus, opined that it is as likely as not that the Veteran's hearing loss is related to his military noise exposure.  

Based on the foregoing, the RO granted service connection for left ear hearing loss but denied service connection for right ear hearing loss on the basis that his right ear hearing loss did not meet the level of impairment to be considered a disability under 38 C.F.R. § 3.385.  

The Veteran was afforded another VA audiometric examination in September 2016, wherein testing revealed hearing loss in the right ear, as defined by VA regulation.  This examination is considered competent and credible evidence, as audiometric testing was performed by a state licensed audiologist and the report included the results of the Maryland CNC speech discrimination test and puretone audiometry test.  See 38 C.F.R. § 3.385.

Based on the opinion provided by the February 2011 VA examiner, coupled with the September 2016 audiological testing which verified a diagnosis of right ear hearing loss disability under VA regulations, the Board finds that service connection for right ear hearing loss is warranted.


ORDER

Service connection for a right ear hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits.


REMAND

During the June 2017 Board hearing, the Veteran testified that he has received disability benefits from the Social Security Administration (SSA) since 2010, after he stopped working due to his cervical spine/neck disability.  The evidentiary record does not contain any records from SSA and it appears that the record is missing VA outpatient treatment records dated from February 1998 to September 2004 and since February 2013.  As these records may contain information and evidence relevant to the claims remaining on appeal, they must be obtained for review and consideration in this appeal.  

He also testified that his service-connected cervical spine and IVDS disabilities have worsened since he was last examined by VA in 2011.  In this regard, he specifically testified that he experiences more pain in his neck, arms and down into his back and legs.  He also testified that he is experiencing problems in both shoulders, which he believes is due to his service-connected cervical spine disability.  Given the Veteran's competent assertions as to the increased severity of his service-connected disabilities since the last VA examination in 2011, as well as the newer requirements for VA examinations as delineated in Correia v. McDonald, 28 Vet. App. 158 (2016), the Board finds the increased rating claims must be remanded for updated examinations.  

Finally, an amended VA opinion is needed to determine if the Veteran's claimed tinnitus is secondary to his service-connected left and right hearing loss disabilities, as neither the February 2011 nor September 2016 VA opinions address this matter.  

Accordingly, the case is REMANDED for the following action:

1. Obtain a copy of any SSA disability determination for the Veteran and a copy of the records upon which the determination was based.

2. Obtain the Veteran's VA treatment records dated from February 1998 to September 2004 and from February 2013 to the present. 

3. Schedule the Veteran for a VA examination(s) to determine the nature and severity of his service-connected cervical spine and IVDS disabilities.  

4. Request that the clinician who conducted the September 2015 VA audiological examination review the record and provide an addendum opinion that addresses whether it is as likely as not (a 50 percent or greater probability) that the Veteran's tinnitus was (a) caused by OR (b) is or has been aggravated (worsened beyond natural progression) by his service-connected left and/or right hearing loss disability.  

In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence, as well as the Veteran's assertions regarding the onset and nature of his tinnitus, which are considered competent.

If the September 2015 VA examiner is not available to provide the opinion, request that a clinician knowledgeable in evaluating audiologic disabilities review the record and provide the requested opinion.

A rationale is requested for any opinion given.

5. Readjudicate the claims on appeal.

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. §§ 5109B, 7112 (West 2012).




______________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs