Citation Nr: 18150315 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 14-37 303 DATE: November 15, 2018 ORDER Service connection for a neck disability is denied. Service connection for bilateral hearing loss, to include as secondary to a neck disability is denied. Service connection for tinnitus, to include as secondary to a neck disability is denied. FINDINGS OF FACT 1. The Veteran’s neck disability is not related to active duty service. 2. The Veteran’s bilateral hearing loss is not caused or aggravated by her neck disability or her active duty service. 3. The Veteran’s tinnitus is not caused or aggravated by her neck disability or active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for tinnitus have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from February 1984 to June 1984 and June 1994 to August 1995, and on active duty from July 1990 to July 1993. In the September 2018 Informal Hearing Presentation, the Veteran’s representative asserted that the examinations and opinions of record are inadequate and not empirically supported. She asserted that the Regional Office essentially rationalized that all the medical opinions were inadequate with the exception of the most recent opinion, which she alleges was accepted as the least inadequate opinion. The Board of Veterans’ Appeals (Board) reviews the evidence on a de novo basis and finds that the Department of Veterans Affairs (VA) has satisfied the duty to assist the Veteran. The record contains a medical opinion offered after review of the claims file and supported by a clear rationale based on the evidence of record. With respect to the representative’s contention that the Veteran’s disabilities have worsened since the most recent VA examination the Board finds that for the purposes of establishing service connection the examinations of record are adequate to evaluate the Veteran’s claims. The examiners considered the Veteran’s medical history and conducted in-person clinical testing, and recorded the Veteran’s personal statements. Therefore, the Board finds the examinations are not inadequate. Neither the Veteran nor her representative has raised any other issues with the duty to notify or duty to assist. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis, hearing loss, and tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Active service includes active duty and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a). In other words, service connection is available for injuries or diseases incurred during active duty or ACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). 1. Neck Disability. The Veteran asserts that she has a current neck disability as a result of her military service. Specifically, she asserts that she fell off a platform during an obstacle course and injured her neck; she asserted that she did not experience an acute injury other than being stunned by the fall and that she immediately got back up to complete the course. She reported that she later discovered a chip on her shoulder and that her neck surgery occurred approximately three years later. She reported that she experienced right arm pain and numbness for approximately a year before her surgery. See October 2011 Statement. Service treatment records reflect that in March 1984 the Veteran was treated for neck stiffness; the record reflects that the Veteran was diagnosed with cervical/thoracic strain and prescribed medication. Later that month the record reflects that the Veteran complained of pain over the lower cervical and upper thoracic spine. The Veteran denied much trauma. The Veteran complained of neck pain during jumping jacks and was sent for evaluation. The treating physician diagnosed minimal resolving cervical strain and recommended follow-up for any further problems. An undated separation examination that reflects 10 years of military service indicates that the Veteran’s spine and upper extremitates were normal. The record reflects that in July 2004 the Veteran was diagnosed with cervical disk degeneration, cervical stenosis, and disk herniation. As arthritis is not shown to be present during active service or in the year following separation from active service, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The Veteran’s current cervical spine disk degeneration was diagnosed at an October 2012 VA examination. The examiner was asked to address any relationship between the in-service neck complaints and current neck disability. He recorded that the Veteran had a neck injury in boot camp and was treated with conservative care until she was diagnosed with cervical discectomy in 2004. He noted the Veteran takes medication. The Veteran reported that as a nurse she must watch what she does all the time and has limits lifting. The examiner reported that the Veteran’s neck disability was less likely than not incurred in or caused by her military service. He explained that the Veteran has had a cervical injury and surgery that continues to be mildly problematic. In November 2012 a different examiner was asked to provide a medical opinion regarding the relationship of the Veteran’s in-service complaints and current neck disability. The examiner reviewed the claims file and opined that the Veteran’s current neck and spine disability is due to degenerative disk disease gradually developing over 20 years and is not related to minimal cervical strains occurring in March 1984 during the second week of basic training or later that month when the Veteran was seen again. He reported that the Veteran’s cervical discectomy is not a direct result of the cervical strain in 1984. In February 2013 the same VA examiner provided another medical opinion. He reported that the Veteran alleges her spine problem came about as a result of being pushed off a platform while on active duty. He reported that the Veteran did not experience acute pain and continued on with the obstacle course. He reported that three years later she had the anterior cervical fusion. He explained that it was unlikely that the fall from the platform had anything to do with her subsequently developing a herniated disc, and that her disc disease is the course of natural aging of the spine. In June 2015 VA obtained another medical opinion from a different VA examiner to address the etiology of the Veteran’s cervical spine disability. After review of the evidence of record the examiner opined that it was clear that her discectomy in July 2004 is unrelated in any way to her single episode of cervical muscle strain in March 1984. He explained that the July 2004 discectomy completely relieved her neck pain and left arm symptoms of radicular pain. He noted that according to the July 2004 consult the Veteran reported that these symptoms had been present for several months and confirms that the disc herniation occurred in 2004. He reported that there is no report of any event that may have precipitated this herniation nor any event in 2004 related to military service. He reported that the acute disc herniation occurred due to a non-service related event such as a fall or auto accident or blow to the head in 2004 not reported by the Veteran. He noted that the 1984 cervical strain did not result in any neck or left arm symptoms in the days following the event, with no further medical examinations in the service treatment records for any neck symptoms or left arm complaints, and in all separation examinations there is no mention of any symptoms related to the neck. The examiner reported that the 1993 separation examination notes the neck was normal. He reported that the neck strain completely resolved in a few days as is the usual course of simple neck strain, and as there was no sustained trauma to the lower cervical spine documented in the service records, there is no nexus of neck injury to connect with symptoms 20 years later. He opined that therefore it was less likely than not that the Veteran’s cervical disc herniation was caused by her neck strain in service 20 years prior. There is no medical evidence in significant conflict with the opinions of the VA examiner. Thus, the most probative medical evidence is against the claim. A veteran is competent to describe symptoms that she is able to perceive through the use of her senses and to give evidence about what she has experienced. To that extent in July 2005 the Veteran reported that she underwent cervical discectomy in June 2004 and had since recovered approximately 90 percent. She related the severity of her injury and limitations and noted that her post-surgery treatment had been very effective and she felt much better after the treatment. She reported that she endured neck strain from 1984 up until her left arm went numb in 2004. She asserted that she was medically discharged from service due to recurrent swelling and pain in the back of the neck and that she was unable to do push-ups and sit-ups after her surgery. See Undated Statement. Here, the record reflects that the Veteran served as a practical nurse and dental specialist during active duty and that she has worked as a nurse after military service. The Board acknowledges the Veteran’s statements and recognizes that the Veteran may have medical training and knowledge superior to a lay person; however, the most probative evidence of record does not reflect that the Veteran’s current neck disability is etiologically related to active service. The Veteran asserts that her neck disability is related to service and has described symptoms related to her disability, but she has not gone so far as to provide a clear rationale as to the relationship of an in-service injury and current disability. The Board affords greater probative value to the evidence against the claim; specifically, the June 2015 examiner offered an opinion after review of the Veteran’s statements and history of the disability, and the opinion is supported by a clear rationale. In summary, the preponderance of the evidence is against a finding that the Veteran has a current neck disability that was caused or aggravated by service. Thus, the claim for service connection is denied. 2. Hearing Loss and Tinnitus. The Veteran asserts that her current bilateral hearing loss and tinnitus is due to her military service. Specifically, she asserts that she had difficulty hearing and ringing in her ears after her neck injury and reported that her neurological surgeon reportedly felt that her hearing loss and tinnitus were very possibly related to her neck injury and nerve damage. See September 2011 Statement. In statements received by VA she has asserted that after a 2004 neck surgery she experienced ringing in her ears. She reported that the anesthesiologist reported that she had bone spurs on her neck and they were hit hard during surgery. She reported that the surgeon said the ringing had nothing to do with the surgery. See Undated Statement. In statements received in October 2011 the Veteran and her friend reported that she had ringing in her ears when she awoke after her 2004 surgery; she reported that she had never had ringing in her ears before the surgery and that she has received treatment for the ringing in her ears since the surgery. For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. Hearing loss and tinnitus are not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The evidence of record contains a current diagnosis of bilateral hearing loss which meets the criteria for a hearing disability for VA purposes. Military personnel records demonstrate that the Veteran was a dental specialist, administrative specialist, and practical nurse; the Veteran had, at most, a moderate probability of noise exposure. Service treatment records reveal no defects were noted at enlistment in November 1983 and audiogram showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 5 0 5 LEFT 20 20 0 10 10 An undated separation examination noting 10 years of military service revealed the Veteran’s ears were normal and an audiogram showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 0 0 LEFT 20 10 5 0 0 The Veteran was afforded a VA examination in October 2012. The Veteran reported that she has hearing loss in both ears, and she has tinnitus and vertigo. She reported that she has difficulty hearing and interpreting from the left ear and that she first noticed problems with her hearing in 2004 after her neck surgery. The examiner reviewed the Veteran’s medical history and literature regarding noise-induced hearing loss and opined that the Veteran’s hearing loss is less likely as not related to her military service. She reported that the Veteran’s November 1983 enlistment audiogram and her 10 years of government service separation audiogram indicates hearing sensitivity was clinically normal bilaterally. She explained that there was no significant threshold shift from enlistment to separation and hearing thresholds were normal and do not meet VA criteria for a disability. She reported that any opinion citing documentation in the histopathology literature that outer hair cell damage in the cochlea occurs prior to an individual ever showing a threshold shift on an audiogram would only be resorting to mere speculation and any statement using this rational should be treated solely as speculation. In a February 2013 medical opinion a different examiner reported that the Veteran asserts that her hearing problems are related to Meniere’s disease, revealed after a cervical spine surgery. With respect to the Veteran’s tinnitus, the October 2012 VA examiner opined that tinnitus is less likely as not related to military noise exposure. She reported that there was no significant threshold shift from enlistment to separation and that hearing thresholds do not meet VA criteria for a disability. The examiner reported that there was no mention of tinnitus in the service records and that the first evidence of subjective tinnitus was in 2007. She reported that in 2010 a physician noted that the Veteran had complained of tinnitus for six years. The examiner reported that the Veteran’s medication has potential for ototoxicity and tinnitus as a possible side effect. She reported that the etiology of the tinnitus is unknown and tinnitus is a symptom that can be associated with hearing loss, ear disease, head injury, certain medication, neurophysiological factors and many other medical conditions. A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Here, however, the Veteran is not service-connected for a neck disability; thus, service connection for hearing loss and tinnitus is not warranted secondary to her current neck disability. In this case, the medical evidence does not show hearing thresholds meeting the criteria for a hearing loss disability until years after service. The Veteran has reported her hearing loss and tinnitus onset years after active duty service, specifically, after her 2004 neck surgery. The audiological findings and Veteran’s statements do not decrease the probative value of the examiners’ opinions as none of this evidence suggests that the threshold shifts in hearing occurred as a result of noise exposure or injury during service. (Continued on the next page)   The Veteran is competent to attest to the presence of observable symptoms, such as difficulty hearing. The Board finds that the Veteran’s statements regarding decreased hearing ability is both competent and credible. However, with respect to whether hearing loss and tinnitus is due to military service, the Board finds the VA medical opinions more probative than the Veteran’s statements as the opinions were offered by a medical professional after consideration of the history of the disabilities and the Veteran’s statements, and as the opinions are supported by a clear rationale. To the extent that the Veteran alleges her hearing loss and tinnitus started during service and continued to the present, the Board finds this argument to be lacking credibility as the Veteran specifically denied having ear trouble at separation. That report is highly probative as it was made by the Veteran contemporaneous to service during an examination designed to detect disability. Further, the Veteran has asserted in multiple statements and during examination that her hearing loss and tinnitus began after her 2004 neck surgery, after active duty service. As such, the preponderance of the evidence is against a finding that the Veteran has bilateral hearing loss and tinnitus related to active service. Thus, the claims for service connection are denied. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel