Citation Nr: 1804829 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-17 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for residuals of a back injury. 2. Entitlement to service connection for residuals of a back injury. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2017. A transcript of the hearing is of record. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A September 1970 RO rating decision denied service connection for residuals of a back injury; the Veteran did not timely appeal that decision; new and material evidence was not submitted as to that issue within the one-year appeal period. 2. Evidence received since the September 1970 RO rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for residuals of a back injury. 3. The evidence is at least in relative equipoise as to whether the Veteran's residuals of a back injury were aggravated beyond the natural progression by his active service. CONCLUSIONS OF LAW 1. The September 1970 RO rating decision which denied service connection for residuals of a back injury is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence having been received, the claim for entitlement to service connection for residuals of a back injury is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (a); 3.303, 3.304 (f) (2017). 3. The criteria for service connection for residuals of a back injury have been met. 38 U.S.C. §§ 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. New and Material Evidence Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). "New evidence" means existing evidence not previously submitted to VA. "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In this case, the Veteran was initially denied entitlement to service connection for residuals of a back injury in September 1970. He did not appeal or submit new evidence for the September 1970 RO rating decision within the appeal period. Therefore, the September 1970 rating decision is final. 38 U.S.C. § 4005 (c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1970); currently 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In the September 1970 rating decision, the RO denied the Veteran's claim because the negative findings on the August 1970 VA examination refuted aggravation of the Veteran's pre-existing back injury. Thus, for the Veteran's claim to be reopened, new evidence must have been added to the record since the last final rating decision that addresses this basis or supports a new theory of entitlement. Evidence submitted and obtained since the last final rating decision includes VA treatment records, private treatment records, and lay evidence. Notably, in October 2012, the Veteran's private physician provided a positive nexus opinion regarding the Veteran's back injury and aggravation in service. Upon review, the Board finds this evidence is both new and material evidence sufficient to reopen the Veteran's claim. The evidence is new in that it was not of record at the time of the September 1970 rating decision, and the evidence is "material" because it relates to an unestablished fact necessary to substantiate the claim. As a result, the Board finds that the evidence raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156 (a). As the credibility of new evidence is generally presumed, the Veteran's claim of entitlement to service connection for residuals of a back injury is reopened. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). III. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also 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). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is also available for a pre-existing condition, provided it was aggravated during service beyond the course of its natural progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Under VA regulations, every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only such conditions as are recorded in examination reports are considered as noted at enlistment. 38 C.F.R. § 3.304 (b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. However, aggravation may not be conceded where, on the basis of all of the evidence of record, the disability underwent no increase in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity. Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. § 3.306(a). In contrast, a flare-up of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. Analysis The Veteran contends that his pre-existing back injury was aggravated by service. Service treatment records show that the Veteran's back was normal and he was qualified for service upon entrance in March 1968. In January 1969, the Veteran was seen for back pain and provided with a brace. At this point he was put on limited duty for an abnormal back. In July 1969, the Veteran reported having back pain since high school. In May 1970, the Veteran again reported back pain and it was noted that he had recurrent lumbar back pain. The Veteran stated that he had been seen by back specialists prior to entering service. Following service, the Veteran was turned down by the reserves due to a back injury, though a physical examination of the spine was found to be normal. In a December 1993 private treatment x-ray, the Veteran was diagnosed with moderately advanced degenerative disc disease at L4-5 and L5-S1. In August 2012, the Veteran was afforded a VA examination for his claim. The Veteran was diagnosed with degenerative disc disease of the lumbar spine and degenerative joint disease of the lumbar spine and sacroiliac joints. The examiner opined that these conditions were not incurred in or caused by active duty service. The examiner further opined that it was less likely than not that these conditions were secondary to or exacerbated by active duty service. The examiner reasoned that the Veteran was diagnosed with degenerative disc disease more than 20 years after separation from service. There was evidence of a pre-service traumatic injury to the low back which was associated with left leg radicular symptoms, but the examiner found that this injury was stable at the time of entry and exit from service. There was no evidence of an injury to the low back during service, and the examiner stated that the Veteran experienced recurrent low back pain as he had prior to service. There were no signs of a diagnosable condition or disability. Instead, the examiner stated that the back problems were episodic and associated with training activities, without abnormal findings. The Veteran was not fit for infantry work. The examiner stated that findings were consistent with mechanical low back pain, common in adults, which resolved with rest and transfer to a more sedentary work. The examiner said that the pain did not recur following transfer of role, while in service. The examiner reported that the Veteran had a normal separation examination, and there was no evidence of aggravation of the pre-existing injury to his low back. Overall, the examiner stated that the Veteran's current diagnoses were consistent with age-related changes and there were no post-traumatic findings. There was also no widening of disc levels to suggest herniation. In October 2012, the Veteran's private physician submitted a statement regarding the Veteran's back injury. The private physician stated that the Veteran developed symptoms compatible with a herniated disc while in service and was eventually trained to do desk work and was sent to Korea. Regardless, the Veteran's back problems continued and in 1986, the Veteran's private physician gave him a chymopapain injection. The private physician opined that the Veteran's disc problems began while he was in service when he had constant back pain, was prescribed a back brace, and was taken out of the infantry because of back and leg pain. The private physician further stated that this dated back to his time in service and was the reason for his ongoing pain and chymopapain injection. Overall, the Board finds that the evidence is at least in equipoise as to whether the Veteran's back injury was aggravated by service. Service treatment records and lay statements show that the Veteran had a pre-existing back injury and complained of recurrent back problems. Prior to service, the Veteran testified at his March 2017 Board hearing that he was able to participate in sports during high school despite his back problems. Upon entering service, the Veteran was given a brace during service and was placed on limited duty. Following service, the Veteran's back injury has continued to progressively worsen resulting in injections and surgery. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for residuals of a back injury by aggravation of a pre-existing disorder have been met. ORDER New and material evidence having been received, the claim for service connection for residuals of a back injury is reopened. Service connection for residuals of a back injury is granted. REMAND Regrettably, the Board must remand the Veteran's claim of entitlement to service connection for bilateral hearing loss for additional development. The Veteran contends that his hearing loss is due to noise exposure during service. Specifically, the Veteran reported firing a lot of 50 caliber weapons and power presentations without hearing protection. Thus, the Board concedes noise exposure during service. In an August 2012 VA examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. However, the examiner opined that the Veteran's hearing loss was not related to service because the Veteran had normal hearing at entrance and separation from service, and there was no evidence of significant threshold shifts. However, the Board notes that the examiner failed to comment on the Veteran's current hearing loss and whether it was or was not a delayed response to his in-service noise exposure. The Veteran has been granted service connection for tinnitus based on in-service noise exposure, and the Board further notes that the Veteran worked in an office environment with minimal noise exposure following service. Thus, the Board finds this opinion inadequate, and remand is necessary to obtain an opinion that will fully explain the etiology of the Veteran's hearing loss. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records. Request that the Veteran assist with locating these documents, if possible. Associate these with the Veteran's claims file. 2. Then, return the claims file to the August 2012 VA audiological examiner, if available, to obtain an addendum opinion. If an additional examination is necessary to respond to the question presented, an examination should be scheduled. If the 2012 VA examiner is not available, the claims file should be provided to another VA audiologist to obtain the requested opinion. Following review of the claims file, the examiner should explain why the current hearing loss is not merely a delayed reaction to his in-service noise exposure. If the examiner concludes that the finding of normal hearing on separation in 1970 is an indication that the current hearing loss is not due to noise exposure during active duty, the reason for such a conclusion must be fully explained. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative and return the appeal to the Board for appellate review, after the Veteran has had an adequate 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 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 (2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs