Citation Nr: 18144941 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-33 630 DATE: October 25, 2018 ORDER Entitlement to service connection for a back/spine disability is denied. REMANDED Entitlement to service connection for hearing loss is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran had at any time during the appeal, a diagnosis of a back/spine disability. CONCLUSION OF LAW The criteria for establishing service connection for a back/spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army (Army) from September 1967 to May 1969. He has additional service as a member of the Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 1. Entitlement to service connection for a back condition is denied. The Veteran contends that he has a back condition related to service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In his Application for VA Compensation, the Veteran stated that as a combat engineer, he was exposed to multiple instances of twisting, bending, and lifing of very heavy loads for my entire military career. He furthered that he has had continual back problems ever since. In his VA form 9, the Veteran indicated that he hurt his back during service by putting down sections of steel to make a runway for airplanes. In a September 2018 informal hearing presentation, the Veteran’s representative stated that during service in April 1969, the Veteran fell off the back of a moving truck and “landed on his head and back area.” He stated that the Veteran “was initially treated for pain in the left temple area of his head,” and did not return for follow up concerning the other issues due to discharging from service. Service treatment record created at the time of the injury indicates that the Veteran sustained an injury to his head in the “left temple area” and received a prescription of Darvon for pain when there was no evidence of an injury to the back. Other service medical records do not indicate that the Veteran received a medical diagnosis of a back disorder or even that he was assessed with back pain. In the report of his May 1969 Army separation examination, his musculoskeletal, neurological, and head, face and neck body systems were all rated “normal.” The report of the medical history for the separation examination did not note problems concerning the spine. In the history, the Veteran denied experiencing recurring back pain or the other musculoskeletal disorders that were specified on the form. His post-service medical records do not show that the Veteran has exhibited a spine disorder either continually or at any point after his separation from service. Two private medical records concern attention he received for his neck. A record by a physician who saw him in December 2010 for a “sore neck” reflects that on physical examination, no abnormalities were found. An April 1990 hospital record reveals that the Veteran underwent excision of a mass in the back of his neck that was then identified as “mature adepose tissue compatible with lipoma.” VA medical records associated with the claims file reflect that the Veteran has been seen for findings and diagnoses of various disabilities; however, none of these include a back or spine disability. In this case, there is absolutely no medical evidence that the Veteran has been diagnosed with a back or spine disability. The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time of the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 49 (1990); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). To the extent that the Veteran complains that he has pain or other symptoms that are related to his back/spine, there is no indication that any subjective complaints result in functional impairment of earning capacity. See Hunt, supra; Saunders, supra. Consequently, the Board finds that, at no time during the pendency of the claim does the Veteran have a current diagnosis of back or spine disability and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. Therefore, service connection for back/spine disability is not warranted. REASONS FOR REMAND 2. Entitlement to service connection for hearing loss is remanded. The Veteran contends that his hearing was damaged by exposure to loud noise during his active duty service. In a November 2012 VA hearing loss and tinnitus examination report, the VA examiner opined that the Veteran’s tinnitus was at least as likely as not caused by or a result of noise exposure in service. She noted that his MOS was a combat engineer and heavy equipment operator and that he served in Vietnam. With regard to his bilateral hearing loss, she found that there were threshold shifts noted from enlistment to separation, but that his hearing was within normal limits. She could not provide an opinion as the results on audiometric testing were unreportable due to substantial inconsistencies in testing. In December 2016, the Veteran was afforded an additional examination by the same examiner. She again found that no opinion could be provided as the results were not suitable for rating purposes. The examiner further stated that "the use of a speech discrimination score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of pure tone average and speech discrimination scores inappropriate." The examiner did not further explain what was meant or encompassed by language difficulties, cognitive problems, or "etc." The Board finds that the examiner's explanations for the findings, or lack thereof, are inadequate for the purpose of evaluating the Veteran's claim for bilateral hearing loss. The examiner did not indicate that valid audiogram results were unattainable or that there was a deficiency in the Veteran's effort. Furthermore, the claims file does not demonstrate the type of cognitive or language problems that would make valid audiology results unattainable. In light of the above, the Board finds that a new VA hearing examination and opinion are warranted to determine the nature and etiology of any hearing loss disability. If the examiner finds that such results are once again not obtained, the examiner must explain in detail why this is the case and should specifically state whether there is anything that can be done to assist in obtaining valid hearing results or whether the inability to obtain valid results has anything to do with the Veteran's effort. In addition, post-service VA medical records dated from 2014 to 2016 show that VA followed the Veteran for bilateral hearing loss and fitted him with hearing aids. VA audiology reports and audiometric testing results must be obtained on remand. Lastly, his DD Form-214 indicates that in May 1969, on the date his active duty in the Army ended, the Veteran transferred to the Army Reserve to fulfill an obligation that was to end in September 1973. The personnel and medical records from this period of service should be obtained and associated with the file. The matter is REMANDED for the following action: 1. Obtain all the service medical and personnel records for the Veteran that may be outstanding, to include records from his period of service in the Army Reserve, and associate them with the claims file. 2. Obtain all VA audiological treatment records, to include records of audiometric testing with puretone threshold results, and associate them with the claims file. 3. Then, schedule the Veteran for a new VA hearing examination, with a medical professional who has not previously examined him, to determine whether the Veteran currently has bilateral hearing loss disability and whether any current hearing disability is related to service. The examiner is requested to determine whether the Veteran has a current bilateral hearing loss disability. If the examiner is unable to obtain valid audiometric test results, a thorough explanation of why this is the case must be provided. The examiner must explain and cite evidence to support a finding that the Veteran is unable to provide valid audiometric test results. If the failure to obtain valid results is due to the Veteran's effort or lack thereof during testing, this must be explicitly explained. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current bilateral hearing loss had its onset in service or is otherwise related to a disease or injury in service, including the reported in-service noise exposure and the confirmed in-service hearing threshold shift. The examiner must consider the Veteran’s statements regarding the onset and continuity of hearing loss symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). A complete rationale for any opinion expressed must be clearly set forth in the examination report. The examiner must not rely solely on the possibility that the Veteran’s hearing was within normal limits for VA purposes at the time of separation from service as the basis for any opinion provided. The reasons for accepting or rejecting any of the Veteran’s statements should be set forth in detail. 4. Then readjudicate the claim. If the claim remains denied, issue to the Veteran and the Representative a supplemental Statement of the Case (SSOC). Then return the case to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel