Citation Nr: 18145877 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-41 299 DATE: October 30, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of bilateral hearing loss. 2. The Veteran was exposed to acoustic trauma in-service. 3. Resolving all doubt in the Veteran’s favor, his currently diagnosed bilateral hearing loss had their onset during active duty service and symptoms of hearing loss have been continuous since his separation from service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1981 to March 1990. Additionally, the Board notes that the issues service connection for a right knee disability and increased rating for a lumbar spine disability are part of a different appeal stream that is currently being developed at the RO at the post-notice of disagreement stage and the RO has not yet issued a statement of the case regarding these claims. The Board acknowledges that ordinarily those claims should be remanded for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran’s notice of disagreement has been acknowledged by the RO and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized. As such, the Board need not direct the RO in a remand to address these claims at this time. In addition, the issue of increased rating for a left knee disability has not been perfected for appeal to the Board, but the appellate period has not yet expired. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Hearing loss (as an organic disease of the nervous system) is a “chronic disease” under 38 C.F.R. § 3.309(a), and as such, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b), and manifestation to a degree of 10 percent within one year under 38 C.F.R. § 3.307 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Bilateral Hearing Loss The Veteran asserts that his bilateral hearing loss is related to his exposure to hazardous noise in-service. The Veteran is currently diagnosed with bilateral hearing loss. See e.g., July 2013 VA audiology examination report. Regarding the second element of in-service incurrence, the Veteran’s exposure to hazardous noise has been conceded. His service treatment records specifically show that he was routinely exposed to hazardous noise as an aerospace propulsion technician (jet engine mechanic). Next, with respect to the issue of nexus, the evidence unfavorable to the claim includes a July 2013 VA examiner’s opinion indicating that the Veteran’s bilateral hearing loss was not related to service, because his left ear hearing loss preexisted service and was not aggravated, and that his right ear hearing loss was not shown at discharge. Though, the examiner concluded that the Veteran’s tinnitus was related to service because it began during or shortly after service. Upon review, the Board finds the July 2013 VA examiner’s opinion inadequate. First, the Veteran’s service treatment records clearly show normal hearing for VA purposes, bilaterally, upon entry to service. As such, the examiner’s statement that his left ear hearing loss preexisted service is a misstatement of fact. Second, while the examiner noted that his service treatment records showed mild hearing loss in the left ear upon entry, the record clearly shows that this notation was at the time of his separation examination. Lastly, while the Veteran’s separation examination also shows normal hearing for VA purposes, the examiner stated that there was no significant threshold shift shown; however, the Board notes that the guidelines of the National Institute for Occupational Safety and Health (NIOSH) indicate that a significant threshold shift is 15 decibels or more, which in this case, was shown at the 4000 Hz in the left ear. In any event, evidence favorable to the claim includes the Veteran’s competent and credible statements that symptoms of his hearing loss began in-service and have been continuous ever since. In his July 2014 notice of disagreement, the Veteran indicated that he joined the military when he was 19-years-old and served for 9-years as an aircraft mechanic. He noted that he was removed from Test Cell (where they tested the engines) and placed in the Back-Engine Shop because of his deteriorated hearing. The Board notes that the Veteran’s service treatment records contain numerous audiograms that show some worsening throughout service, and although his separation audiogram was normal, he is competent to describe symptoms of hearing loss during service and since separation from service. Furthermore, while the July 2013 VA examiner accepted the Veteran’s lay assertions regarding the onset of his tinnitus, it is unclear why his competent assertions regarding the onset of his hearing loss were not given any consideration. Based on the foregoing, the Board accepts the Veteran’s statements as to the onset of his hearing loss in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board considered requesting an additional etiology opinion; however, the Board finds highly probative the Veteran’s lay statements regarding the onset of his bilateral hearing loss and his reports that symptoms of the disability continued since service, as they are consistent with the medical evidence. Thus, in light of the current diagnoses of right ear hearing loss, the conceded in-service noise exposure, and the competent and credible evidence of in-service incurrence and continuity of symptomatology since service, the criteria to establish service connection on a presumptive basis are met. Accordingly, service connection for bilateral hearing loss disability is warranted. REASONS FOR REMAND The Board finds that a remand is necessary to provide the Veteran with a new VA examination to determine the nature and etiology of the Veteran’s cervical spine disabilities. The Board notes that the record reveals current diagnoses of cervical strain; interval disc syndrome; cervical radiculopathy; arthropathy of cervical spine facet joint; and, arthritis of the cervical spine. During a January 2018 VA examination, the examiner only noted diagnoses of cervical strain and disc syndrome, and opined that the MRI did not reveal any cervical arthritis, so it was not “favorable that condition is related since it is not notated in reports.” Thereafter, in a March 2018 addendum opinion, once asked to respond to x-rays from September 2015 which showed arthritis, the examiner opined that while the Veteran has a diagnosis of cervical spine degenerative arthritis, it was noted as only mild, and an MRI is more sensitive to the presence of bone damage due to arthritis than an x-ray. Nevertheless, the examiner opined that a review of the claims file shows that the Veteran denied cervical pain until 2013, 29-years after the reported in-service accident, so a nexus could not be established. The Board finds that a new examination with addendum nexus opinion is necessary, since the examiner only addressed the etiology of possible arthritis, but as discussed above, other diagnoses are documented in the record, and their etiology was not discussed. Furthermore, the examiner solely relied on the lack of documented complaints prior to 2013 in rendering a negative opinion. The Board also notes that in his June 2016 substantive appeal, the Veteran raised the possibility that his neck disability was related to his service-connected shoulder and back disabilities. Accordingly, an opinion on a secondary basis is also necessary.   The matter is REMANDED for the following action: 1. Provide the Veteran with a VA examination to determine the nature and etiology of any currently diagnosed cervical spine disabilities. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the examination report that the claims file was reviewed. After a careful review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed cervical spine disabilities since February 2013, to include previously diagnosed cervical strain; disc syndrome; cervical radiculopathy; arthropathy of cervical spine facet joint; and, arthritis of the cervical spine. If the examiner determines that any of the above-mentioned diagnoses are no longer shown, the examiner MUST explain with specificity whether they resolved or were incorrectly diagnosed. In providing the following opinions, the examiner should consider the Veteran’s lay assertions as to the onset of his neck disability symptoms. (b) For each currently diagnosed cervical spine disability, provide an opinion whether it is at least as likely as not (50 percent or higher probability) had its onset during service and/or is otherwise causally or etiologically related to service, to include a documented motorcycle accident in 1984. (c) For each currently diagnosed cervical spine disability, provide an opinion whether it is at least as likely as not (50 percent or higher probability) was caused or aggravated by the Veteran’s service-connected back or shoulder disability. Please note: lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. A complete rationale for all opinions on direct, causation, AND aggravation. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel