Citation Nr: 18150224 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-00 241 DATE: November 14, 2018 ORDER New and material evidence having been received, the previously denied claim for entitlement to service connection for service connection for hepatitis C is reopened. New and material evidence having been received, the previously denied claim for entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received, the previously denied claim for entitlement to service connection tinnitus is reopened. Service connection for fibromyalgia is denied. Service connection for a cervical spine disability to include as secondary to a lumbar spine disability is denied. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED The claim of entitlement to service connection for hepatitis C to include as secondary to posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The evidence received subsequent to the most recent final denial of service connection for hepatitis C in June 2006 is new and material as it raises a reasonable possibility of substantiating the claim. 2. The evidence received subsequent to the most recent final denial of service connection for a bilateral hearing disability in July 2001 is new and material as it raises a reasonable possibility of substantiating the claim. 3. The evidence received subsequent to the most recent final denial of service connection for tinnitus in January 1994 is new and material as it raises a reasonable possibility of substantiating the claim. 4. The Veteran’s fibromyalgia is neither proximately due to nor aggravated beyond its natural progression by her service-connected lumbar spine disability, and is not otherwise related to an in-service injury, event, or disease. 5. The Veteran’s cervical spine disability is neither proximately due to nor aggravated beyond its natural progression by her service-connected lumbar spine disability, and is not otherwise related to an in-service injury, event, or disease. 6. The weight of the medical evidence shows that the Veteran’s bilateral hearing loss is etiologically related to noise exposure in service. 7. Resolving reasonable doubt in the Veteran’s favor, the Veteran has tinnitus which began during active service. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the June 2006 Board decision, the requirements to reopen a claim for service connection for hepatitis C have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received since the July 2001 rating decision, the requirements to reopen a claim for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. As new and material evidence has been received since the January 1994 rating decision, the requirements to reopen a claim for service connection for tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for fibromyalgia are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 5. The criteria for service connection for a cervical spine disability to include as due to a lumbar spine disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 6. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to June 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2011 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida New and Material Evidence New evidence is defined as evidence not previously submitted to agency decision-makers. 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). With regard to the claims concerning new and material evidence for hepatitis C, bilateral hearing loss, and tinnitus, the Board notes that the claims were previously denied in a June 2006, July 2001, and January 1994 rating decisions (respectively), on the basis that there was no evidence of record to show that these conditions had their onset during service. The Veteran did not perfect an appeal to these rating decisions, or submit new and material evidence within a year of the decision. As such, those rating decisions became final. Since the June 2006 Board decision denying service connection for hepatitis C, the Veteran has been awarded service connection for PTSD and she now contends that her hepatitis C is caused by intravenous drug use secondary to her service-connected PTSD. Since the July 2001 rating decision that denied service connection for bilateral hearing loss, the Veteran has been diagnosed with bilateral hearing loss under the VA criteria for a hearing loss disability. Since the January 1994 rating decision, the Veteran has newly been diagnosed with tinnitus. She has also submitted credible allegations that she has experienced hearing loss and tinnitus since her military service. The Board finds that the evidence added to the claims file is new as it was not before the adjudicators at the time of the rating decisions and the new evidence is material because it related to unproven elements of the claim previously denied. Accordingly, the Board finds that the low threshold for reopening the claims have been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the new evidence is material, and the Veteran’s claims are reopened.   Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for fibromyalgia and a cervical spine disability to include as secondary to a lumbar spine disability The Veteran contends that her currently diagnosed fibromyalgia and cervical spine disability were caused by serviced-connected lumbar spine disability. A review of the Veteran’s service treatment records shows no reports or treatments for fibromyalgia or a cervical spine disability. A May 2011 VA fibromyalgia examination report shows that the Veteran’s fibromyalgia was less likely than not caused by or a result of intervertebral disk syndrome, however the examiner noted that the condition may be aggravated by an intervertebral disk syndrome. Significantly, the examiner noted that fibromyalgia was a generalized muscle pain with no relation to disc syndrome in the neck but that the disc syndrome may have caused muscle pain which could mimic muscle pain of fibromyalgia. The examiner indicated that an opinion could not be made regarding the extent of aggravation in the Veteran without resorting to speculation. A May 2011 VA cervical spine examination report shows that the Veteran was diagnosed with degenerative disk disease with spondylosis. The examiner opined that it was less likely than not that the cervical spine disability was caused by service as the symptoms onset many years after service. The examiner also noted that a review of the service treatment records showed no treatments or reports of a neck injury or pain during service. A December 2015 VA opinion regarding fibromyalgia shows that the condition was less likely than not aggravated beyond its natural progression by the service-connected intervertebral disc syndrome of the lumbar spine. As rationale for this opinion, the examiner noted that VA treatment records indicated that the Veteran’s fibromyalgia had an onset in November 2014 and that the condition was managed with conservative medical measures and had not changed in a year’s time. Moreover, the examiner noted that the most recent lumbar spine imaging study showed no new changes that would be expected to result in aggravation of the fibromyalgia. A December 2015 VA opinion regarding the Veteran’s cervical spine disability shows that this condition was also less likely proximately due to or the result of the Veteran’s service-connected lumbar spine disability. As rationale for this opinion, the examiner noted that osteoarthritis is an inflammation of one or more of your joints. The main symptoms of arthritis are joint pain and stiffness, which typically worsens with age. Osteoarthritis is the most common form of arthritis and is usually caused by normal wear and tear. This wear and tear can occur over many years, or it can be hastened by a joint injury or infection. Risk factors may include that of age, female sex, significant joint injuries (from sports or accidents), obesity, certain occupations, or other diseases (diabetes mellitus, hypothyroidism, gout, Pagets disease of the bone). The examiner noted that the Veteran’s service-connected intervertebral disc syndrome of the lumbar spine is anatomically separate from the cervical spine condition. Consequently, there would be no anatomical or systemic influences on the cervical area from the lumbar site or vice versa. Moreover, the etiologies of the cervical spine condition may arise from the same chronic wear and tear degenerative process or trauma that the lumbar spine would be exposed to. Therefore, while the two conditions may co-exist, this may be coincidental and attributable to the environmental factors that both were exposed to. Regarding aggravation, the December 2015 VA examiner opined that it was less likely than not that the cervical spine disability was aggravated beyond its natural progression by the lumbar spine condition. As rationale for this opinion, the examiner noted that disc degeneration and accompanying arthritis is a common development and that age-related changes are present in 40 percent of adults over the age of 35 and in almost all individuals over the age of 50. The examiner also noted that a review of the imaging studies of the Veteran’s neck from August 2007 to March 2014 revealed no considerable progression of the cervical spine and that the changes that were seen are what would be expected from wear and tear over time in the 50+ year old Veteran. Regarding service connection on a direct basis, the Board notes that the Veteran has not asserted that fibromyalgia or a cervical spine disability onset during service but has only claimed that the conditions were caused and/or aggravated by her service-connected lumbar spine disability. As above, the Veteran’s service treatment records are negative for fibromyalgia and/or a cervical spine disability and the Veteran was first diagnosed with fibromyalgia and a cervical spine disability many years after separation for service. There is no evidence of record to suggest that the Veteran’s current fibromyalgia or cervical spine disability began in, or are otherwise etiologically linked to, her time in service. Therefore, service connection on a direct basis or as a chronic condition manifesting after separation from service is not warranted. Regarding whether the Veteran’s fibromyalgia or cervical spine disability were caused or aggravated by her service-connected lumbar spine disability, the Board also finds that a review of the record indicates that service connection on a secondary basis is also not warranted. In so finding, the Board gives significant probative value to the May 2011 and December 2015 VA opinions of record. Here, the VA examiners reviewed the claims file, statements of symptomatology, and medical literature. Based on this evidence, the examiners opined that it was less likely than not that the Veteran’s current fibromyalgia and cervical spine disability were not secondary to and/or aggravated by her service-connected lumbar spine disability. Significantly, these opinions are the only competent medical opinions of record to address the medical relationship, if any, between the Veteran’s fibromyalgia and cervical spine disability with service, to include secondary to service-connected disabilities. The medical opinions provide a thorough, clear rationale based on an accurate and thorough discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The basis for the negative opinions are consistent with the evidence of record. Neither the Veteran nor her representative has presented or identified any contrary medical opinion that would, in fact, support the claim for service connection for fibromyalgia or cervical spine disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The only other evidence of record supporting the Veteran’s claim is her own lay statements. In those statements, the Veteran contends that her fibromyalgia and cervical spine disability were caused and/or aggravated by her service-connected lumbar spine disability. However, the Veteran is a layperson, and there is no evidence of record to show that she has the specialized medical education, training, and experience necessary to provide a competent medical opinion as to the nature and etiology of the medical conditions she asserts warrants service connection. Diagnosing fibromyalgia or a cervical spine disability and providing an etiological opinion is medically complex in nature and not subject to be diagnosed or identified by a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran’s statements regarding diagnosis and etiology are not competent. Even if they were competent, they are outweighed by the medical opinions obtained from the 2011 and 2015 VA examiners, who found that the claimed fibromyalgia and cervical spine disability were not incurred in service, or caused or aggravated by service connected lumbar spine disability. The VA examiners considered the Veteran’s statements, as well as reviewed the claims file and medical literature, in reaching these conclusions. The Board thus concludes that the preponderance of the evidence shows that the Veteran’s fibromyalgia and cervical spine disability did not manifest during service, are not otherwise etiologically related to service, and were not caused or aggravated by her service-connected lumbar spine disability. Therefore, the claims are denied. 2. Entitlement to service connection for bilateral hearing loss and tinnitus. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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, or 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. The Veteran’s service treatment records show some hearing loss during service pursuant to Hensley and also show significant threshold shift in hearing. Specifically, the Veteran’s April 1979 pre-enlistment examination shows the following audiological findings: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 15 LEFT 15 15 5 0 0 A September 1984 examination shows the following audiological findings: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 5 0 5 LEFT 25 5 5 10 35 The Veteran’s May 1986 separation examination shows the following audiological findings: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 15 25 LEFT 30 20 20 15 20 The Veteran submitted an initial claim for service connection for bilateral hearing loss in June 1990 and, at that time, the Veteran wrote that she first began to notice hearing loss in 1984. However, service connection was denied by rating decision dated in June 1990 based on a finding of no hearing loss for VA purposes. The Veteran submitted an initial claim for service connection for tinnitus in September 1993. However, service connection was denied by rating decision dated in January 1994 based on a finding of no diagnosis of tinnitus. The Veteran submitted the current claim for service connection for bilateral hearing loss and tinnitus in November 2010. Significantly, in her November 2010 claim, the Veteran wrote that she worked as a truck driver in the Army for over seven years and, during this time, drove various vehicles on a daily basis which produced very loud noises. She also spent a lot of time in the motor pool waiting for her next assignment and, in the motor pool, she would be in close proximity to numerous loud vehicles. After leaving work, she would experience a buzzing in the ears and be unable to hear clearly for several hours afterward. In connection with her claim, she was afforded a VA audiological examination in February 2012. At that time, the Veteran reported that she spent over seven years in the Army with jobs including transportation, teletype communications, and motor vehicle operator. In connection with her duties, she was exposed to loud noises due to weapons firing as well as vehicles in the motor pool. Audiometric testing at that time revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 45 40 LEFT 35 30 30 60 75 With regard to the Veteran’s claimed hearing loss, the examiner noted the Veteran’s reports of in-service noise exposure and opined that it was less likely than not that hearing loss was related in-service noise exposure. As rationale for this opinion, the examiner noted that there was no evidence in service that the Veteran had hearing loss. The examiner noted that one hearing test in service showed 35 dB at the 4000 Hz in right ear but hearing returned to normal. The examiner also noted that there was no medical evidence to support to delayed onset noise induced hearing loss. With regard to the Veteran’s claimed tinnitus, the February 2012 VA examiner wrote that the Veteran could not recall when the onset of tinnitus occurred. She also reported that she had the condition for many years but did not equate the onset to a particular incident. The examiner opined that it was less likely than not that tinnitus was related to service. As rationale for this opinion, the examiner wrote that while medical studies suggest that there is some possibility of delay in onset of tinnitus due to noise exposure, as the interval between noise exposure and the onset and tinnitus lengthened, the possibility that tinnitus will be triggered by other factors increased. In this case, medical evidence shows a current bilateral hearing loss disability for VA compensation purposes pursuant to 38 C.F.R. § 3.385. The evidence also suggests a link between this hearing loss and the Veteran’s military service. In this regard, the Veteran alleges military acoustic trauma and she is competent to report such symptoms as decreased hearing acuity that she experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, based upon the evidence available, the Board presumes the occurrence of the Veteran’s in-service acoustic trauma. Furthermore, there is evidence of in-service hearing loss pursuant to Hensley as the Veteran had a 35 dBL loss at 4000 Hz in the left ear and 25 dBL at 500 and 4000 Hz in the right ear during her service. While the February 2012 VA examiner opined that the Veteran’s bilateral hearing loss is not related to her military service, the VA examiner’s rationale focused on an inaccurate premise of the absence of hearing loss in the Veteran’s service treatment records. Given the Veteran’s presumed in-service acoustic trauma during her military service along with her credible testimony of continuity of symptomatology since that time, the Board finds that there is an approximate balance of positive and negative evidence in this appeal. 38 C.F.R. § 3.303 (d). Resolving all remaining doubt in the Veteran’s favor, the Board concludes that service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107 (b). With regard to the Veteran’s claimed tinnitus, the Board notes that tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, while the Veteran’s service treatment records are negative for specific complaints of tinnitus, the Veteran is competent to report a history of tinnitus that began in service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of tinnitus symptoms. She is also competent to comment on the onset and frequency of his tinnitus. Lay evidence can be competent and sufficient evidence to establish etiology if the layperson is competent to identify the medical condition and lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson; Jandreau. Here, under Charles the Veteran is competent to identify the medical condition of tinnitus and her lay statements describe tinnitus beginning in service supports the later diagnosis by the February 2012VA examiner. While the February 2012 VA examiner opined that the Veteran’s tinnitus was not related to her in-service noise exposure as the Veteran could not recall the onset of her tinnitus as she had had it for many years, the Board finds that this rationale is flawed. Indeed, such a statement does not contradict the Veteran’s previous November 2010 allegations in this appeal that her tinnitus began during service. As such, the Board finds that the February 2012 opinion is not probative. In this case, affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s competent and credible lay evidence is sufficient to establish a nexus between service and tinnitus and service connection for tinnitus is warranted. 38 C.F.R. § 3.303(a). REASONS FOR REMAND The Veteran contends that her hepatitis C was caused by her service-connected PTSD. She reports that the military sexual trauma she experienced during service caused her to use intravenous drugs. Generally, drug use is considered willful misconduct and is not an event for service connection purposes. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1 (m), 3.301(d); see also VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). However, there is a limited exception for any drug abuse disability acquired as secondary to, or as a symptom of, a Veteran’s service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also indicated that a claimant could only recover if they can “adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder.” The Federal Circuit stated that such compensation would only result “where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing.” In connection with this claim, the Veteran was afforded a VA examination in November 2010. Significantly, the examiner noted an onset of hepatitis C in 1995, approximately nine years after the Veteran’s discharge from military service, and opined that the Veteran’s hepatitis C was not due to the intravenous drug use and/or sexual assault in service as the Veteran’s drug and alcohol use/abuse began before her active military service. Unfortunately, the Board finds that this opinion is based on an inaccurate premise as the Veteran’s service treatment records show a history of intravenous drug use during service. In fact, the Veteran was discharged due to her military service. Furthermore, the November 2010 VA opinion did not address whether or not her service-connected PTSD caused and/or aggravated her hepatitis C. As such, another VA examination is warranted to fully address her contentions. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner with the appropriate examiner to determine the nature and etiology of the Veteran’s hepatitis C. All indicates tests and studies should be completed. a. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hepatitis C was incurred in service, or is otherwise related to any incident of service, specifically considering her documented in-service drug use. Why or why not? b. The examiner should opine as to whether it is at least as likely as not that the Veteran’s hepatitis C is proximately due to, or the result of, her service-connected PTSD, including any drug use undertaken to self-treat the same. Why or why not? c. The examiner should then, as a clear and separate response, opine as to whether it is at least as likely as not that the Veteran’s hepatitis C is aggravated, made permanently worse beyond the natural progression of the disease, by her service-connected PTSD, including any drug use undertaken to self-treat the same. Why or why not? (Continued on the next page)   2. Readjudicate the appeal. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel