Citation Nr: 18150410 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 09-50 624 DATE: November 15, 2018 ORDER Entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for a left hip disability, to include avascular necrosis, is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDING OF FACT The evidence is at least in equipoise as to the question of whether a preexisting back disability was aggravated in service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to August 1969. This matter comes to the Board of Veterans’ Appeals (Board) from a March 2009 rating decision which, in pertinent part, denied service connection for low back and left hip disabilities. In March 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board videoconference hearing. A copy of the transcript is of record. In March 2014, the Board remanded the case for further development, including obtaining VA examinations and medical opinions. In a June 2017 decision, the Board denied service connection for back and left hip disabilities. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), and in a March 2018 order, the Court granted the parties’ Joint Motion for Remand (JMR), vacated the Board’s June 2017 decision, and remanded the matters back to the Board for development consistent with the Joint Motion. This matter also comes to the Board from August 2014 and June 2015 rating decisions which granted service connection for left and right ear hearing loss, evaluated as noncompensable. In October 2018, the Veteran submitted additional evidence in support of his claim of entitlement to service connection for a back disability and waived initial RO review of the evidence. As such, the Board may proceed with a decision without prejudice to the Veteran. In a March 2014 Board decision, the Board found that the issue of a knee disability had been raised during the Veteran’s January 2014 Board hearing and referred the issue to the Agency of Original Jurisdiction (AOJ) for adjudication. It does not appear that any actions have been taken to date. Additionally, the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the issues of entitlement to service connection for a knee disability and entitlement to a TDIU are referred to the AOJ for appropriate action. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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 a “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 a 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2017). Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304(b), and that “[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1). If a disorder was not “noted” on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (2017). Entitlement to service connection for a back disability. The Veteran contends that his current back disability is related to a Jeep accident during service. Specifically, he states that he was pinned by a Jeep when it slid into a ditch, and that he has had back pain since that time. The Board has previously accepted the Veteran’s assertion that he was in a Jeep accident as credible. The Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. While the Veteran has provided testimony and statements indicating that he has had back pain since service, service treatment records show that a low back disability was noted on the Veteran’s May 1967 entrance examination. Therefore, the presumption of soundness is not for application with regard to the Veteran’s claimed back disability, and the proper question on appeal is not whether his back disability was incurred in service, but whether the back disability noted at service entrance was aggravated in service. 38 U.S.C. §§ 1111, 1153 (2012); 38 U.S.C. § 3.306 (2017). Because the Veteran’s back disability was noted at service entrance, if the condition, as likely as not, increased in severity during service, this increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Affording the Veteran the benefit of the doubt, the Board finds that the weight of the evidence shows that the Veteran’s current back disability was aggravated in service. Service treatment records show that on the Veteran’s May 1967 entrance examination, the Veteran reported having recurrent back pain. Upon objective examination, the examiner identified back aches with the use of a back brace. The Veteran was seen on one occasion in service, in August 1967, for mid-back pain. A physical examination of the back was negative and the Veteran was given a bed board. On a May 1969 separation examination, the Veteran continued to identify a history of recurrent back pain, but upon objective examination, no back complaints or abnormalities of the spine were noted. The Veteran reports having intermittent back pain since service, with chiropractic treatment shortly after service and the Board finds that his reports are credible. VA and private treatment records identify treatment for back pain since 2001 with a history of intermittent back pain noted since service. During a May 2015 VA examination, the Veteran reported that he had a back condition prior to entering service, but contended that he aggravated his back condition more while in service. He reported that he was treated with Darvon and was returned to full military duties. After reviewing the record and examining the Veteran, the VA examiner opined that it was less likely than not that the Veteran’s back disability was aggravated beyond its natural progression in service, reasoning that there were no abnormal findings on examination that day, that the Veteran’s current decreased forward flexion may be caused by age, and that the Veteran’s exit examination did not mention a back condition or pain that was aggravated beyond its natural progression in service. In a February 2016 addendum opinion, the VA examiner specifically addressed the reported Jeep accident in service, but opined that the Veteran did not have a back condition that was at least as likely as not incurred or caused by the Jeep accident in service. The examiner reasoned that a May 1967 preinduction examination showed that the Veteran had recurrent back pain with the use of a back brace, representing a preexisting, recurrent back condition. The examiner also noted the in-service evaluation for back pain with a notation of a back board; however, the examiner stated that a separation examination indicated that the Veteran had recurrent back pain without the presence of a significant back condition at the time of separation. The VA examiner acknowledged the Veteran’s history of being pinned under a Jeep in an accident in service, but stated that the evidence reviewed did not suggest that the Veteran’s current back condition was related to the reported Jeep accident or treatment in service, and there was no evidence suggesting that the Veteran’s preexisting back condition was aggravated beyond its natural progression during active military service based on the examination and on the evidence reviewed. The Board finds that the May 2015 and January 2016 VA opinions, when taken together, are inadequate. In the Board’s March 2014 remand directives, the Board instructed the examiner to address certain information, including the Veteran’s report of medical history at separation that noted he reported recurrent back pain and wore a brace for support. Furthermore, the VA examiner’s opinions focused on whether the Veteran’s back disability was caused by the in-service Jeep accident and did not provide an adequate rationale or basis for the opinion pertaining to aggravation. Thus, the Board has afforded little probative weight to the VA examiner’s opinions. The Veteran submitted a private opinion dated in July 2018 from an orthopedic surgeon. The physician indicated that he reviewed the Veteran’s entire claims file, interviewed the Veteran, and reviewed the medical literature and it was his opinion that it was at least as likely as not that the Veteran’s current thoracolumbar disability was permanently aggravated and accelerated beyond its normal course secondary to the in-service Jeep injury. The examiner noted that the Veteran was pinned underneath the Jeep at his waist, which is level to the lumbar spine. The physician indicated that the Veteran had only mild, intermittent episodes of low back pain prior to his entrance into service and that ever since the in-service Jeep accident, he had experienced worsening ongoing low back pain that had progressively escalated even further, meaning that his thoracolumbar symptoms accelerated and never returned to the pre-injury level of symptoms. The physician noted that prior to the Jeep accident, the Veteran went through basic training with no escalation of his pre-induction symptoms, but that following the accident, even his daily driving activities brought on and/or escalated his lumbar pain due to prolonged sitting. The physician further explained that based on a review of the medical literature, individuals with routine degenerative changes of their spine, but who are symptomatic, more likely than not had some other occurrence, such as a trauma, happen besides the normal aging process. The Board finds the July 2018 physician is persuasive as the opinion is based on a thorough review of the relevant records, a review of the medical literature, the physician’s training and experience, and an interview with the Veteran. The physician’s opinion reflects clear and unequivocal conclusions regarding the relationship between the Veteran’s pre-existing back disability, his in-service Jeep accident, and his current thoracolumbar spine disability. The reasoning adequately shows that the physician’s opinion is supported by the relevant and material information and is factually accurate, fully articulated, and based on sound reasoning. Thus, the opinion carries significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There are no equally or more probative medical opinions of record to the contrary. Regarding the Veteran’s assertions of lumbar spine pain since service, the Board notes that the Veteran, as a lay person, is competent to report on matters observed or within his personal knowledge. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran is also competent to testify as to observable symptoms or injury residuals. Thus, the Veteran is competent to state that he experienced an increase in lumbar spine pain after his in-service Jeep accident, and that he has continued to experience lumbar spine pain since service to the present. Given the positive opinion and the Veteran’s own statements, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s preexisting back disability was aggravated by an in-service Jeep accident. Furthermore, there is no clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that the claim of service connection for a thoracolumbar spine disability, diagnosed as degenerative disc disease, is granted. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a left hip disability at this time. The Veteran was afforded a VA examination in May 2015, with an addendum opinion rendered in February 2016. While the VA examiner opined that the Veteran’s left hip disability was less likely than not incurred in or caused by service, the examiner explained that establishing a nexus between the left hip disability and the Jeep accident during service could not be made with certainty at the time. The Board finds the May 2015 and February 2016 VA examiner’s opinions inadequate, as no explanation was provided for why such an opinion could not be provided. Therefore, the Board finds that a remand is warranted for an addendum opinion as to the etiology of the Veteran’s left hip disability. 2. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to a compensable rating for bilateral hearing loss at this time. VA treatment records reflect that in February 2009 and August 2015, the Veteran received audiograms. While the audiograms were summarized, they have not been associated with the Veteran’s claims file. Therefore, the Board cannot view them as part of the record on appeal. The Board notes that it has also been more than three years since the Veteran’s hearing was tested and evidence suggests that the Veteran’s condition may have worsened. Therefore, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss. The matters are REMANDED for the following actions: 1. Obtain the February 2009 and August 2015 audiograms associated with the Veteran’s VA audiological assessments and any VA treatment records from September 2018 to present. 2. Obtain an addendum opinion from an appropriate clinician to determine the etiology of the Veteran’s left hip disability. The examiner must opine whether the Veteran’s left hip disability at least as likely as not (1) began during active service, to include related to an in-service injury, event, or disease, including the Veteran’s in-service Jeep accident, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.] If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s bilateral hearing loss alone and discuss the effect of the Veteran’s bilateral hearing loss on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K.Parakkal Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel