Citation Nr: 18152540 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-00 161A DATE: November 23, 2018 ORDER The petition to reopen the claim of entitlement to service connection for back disability is granted. The petition to reopen the claim of entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for residuals of back injury is granted. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for PTSD is granted. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed June 1995 rating decision, the RO denied service connection for back disability and for bilateral hearing loss disability. 2. Evidence received since the June 1995 final rating decision, to include medical and lay evidence, is new and material. 3. The Veteran does not have a bilateral hearing loss disability for VA compensation purposes. 4. The evidence is in a state of relative equipoise regarding whether documented in-service back injuries led to current residuals. 5. A cervical spine disability is not related to an event, injury, or illness in service. 6. The evidence is in a state of relative equipoise regarding whether an acquired psychiatric disability relates to active duty. CONCLUSIONS OF LAW 1. The June 1995 rating decision denying service connection claims for back and hearing loss disabilities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 2. New and material evidence has been received to reopen the claims of service connection for back and hearing loss disabilities. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). 4. The criteria for service connection for residuals of a back injury have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 6. The criteria for service connection for acquired psychiatric disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1989 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2014 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO). 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, 1131 (2012); 38 C.F.R. § 3.303 (2018). Establishing service connection requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for bilateral hearing loss disability is denied. The Veteran contends that service connection is warranted for bilateral hearing loss disability. He contends that noise exposure in the military led to hearing impairment. Under VA guidelines, impaired hearing will be 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, 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 Veteran underwent VA audiology examination in September 2015. The report shows that the Veteran does not have a hearing loss disability under 38 C.F.R. § 3.385. As with a May 1995 VA audiology examination, which was conducted just after the Veteran’s original service connection claim, the September 2015 examination noted no auditory thresholds of 26 decibels or higher and noted no speech recognition scores under 94 percent. As no evidence establishes hearing loss disability for VA purposes, the record lacks evidence of a current disability. As such, the claim must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability); see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). 2. Entitlement to service connection for residuals of back injury is granted. The Veteran contents that he incurred a back disability during service. For the following reasons, a service connection finding is warranted. First, the evidence indicates that the Veteran has current thoracolumbar disabilities. Evidence dated in 2014 and 2015 from the Social Security Administration (SSA) notes diagnoses of degenerative changes in the thoracolumbar spine. Further, VA compensation examination reports dated in May 1995 and November 2015 note the diagnosis of scoliosis. Second, service treatment records (STRs) document that the Veteran injured his back during service. The March 1989 enlistment report of medical examination noted that the Veteran entered service with a normal back and spine. But STRs dated in September 1989 and May 1994 note complaints of injury to the thoracolumbar spine. Although the March 1995 separation report of medical examination noted the back as normal, the separation report of medical history notes “recurrent back pain” and trouble bending over and standing erect due to “chronic back pain.” Third, the evidence is in a state of relative equipoise regarding whether the in-service injuries led to current residuals. See Gilbert and Alemany, both supra. On the one hand, the November 2015 VA examiner found that the Veteran only had scoliosis, that this disorder did not relate to service, and that the Veteran’s in-service injuries amounted to strains that had resolved by the time of service separation. However, the report does not address whether the degenerative changes noted in SSA records amount to residuals of the in-service injuries, and it did not address whether scoliosis existed prior to service, whether it is a congenital defect or a result of injury, whether it worsened during service, or whether the degenerative changes noted years later amounted to a superimposed disability on the scoliosis as the result of the in-service injuries. See 38 U.S.C. § 1111 (2012). As such, the report is of limited probative value on this issue. By contrast, the May 1995 VA examination report is of probative value. This report, based on an examination conducted two months after service separation, detailed the Veteran’s thoracolumbar injuries during service, noted his complaints of chronic pain in the thoracolumbar region, noted x-ray evidence of thoracolumbar scoliosis, and noted “anterior wedging of several medial thoracic vertebrae. This wedging appears to be old.” These findings indicate an acquired disorder in the lower back aside from the scoliosis. Based on the foregoing, the Board cannot find that a preponderance of the evidence shows that current back disability is unrelated to in-service injuries and complaints of chronic pain. As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt and grant the claim. 38 U.S.C. § 5107(b) (2012), 38 C.F.R. § 3.102 (2018). 3. Entitlement to service connection for cervical spine disability is denied. The Veteran contends that his current diagnosed degenerative disk disease of the cervical spine is related to his active service. In this case, there are no in-service notations or symptoms of a cervical spine disorder, and the Veteran gives no indication of potential treatment for any cervical spine disorder until many years after service. His private treatment records indicate that he first sought treatment for his cervical spine in 2012, nearly 17 years following separation from active service. Additionally, private treatment records indicate that when the Veteran first sought treatment for his cervical spine in 2012, he reported that the symptoms had their onset just 3-4 years prior. Here, the evidence does not support a finding that any current cervical spine disorder is causally connected to the Veteran’s active service. To the extent that the Veteran may believe he has a cervical spine disorder and that it is related to his active service, as a layperson, he is not competent to provide an opinion concerning this matter requiring medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran did not undergo a VA examination for this claim. As the evidence indicates no in-service incurrence of a cervical spine disability, and the evidence indicates no causal connection between cervical spine disability and service, a VA examination is not necessary to decide the claim. 38 C.F.R. § 3.159 (2018). Accordingly, the preponderance of the evidence is against the claim. As such, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for acquired psychiatric disability is granted. The Veteran seeks service connection for acquired psychiatric disability. He asserts that he incurred posttraumatic stress disorder (PTSD) during service as the result of a sexual assault. With PTSD claims, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128 (1997). A service connection finding is warranted for PTSD for the following reasons. First, the Veteran as likely as not has PTSD. This diagnosis is noted in an October 2018 VA compensation examination report addressing this claim, as well as in VA treatment records completed by a treating VA psychiatrist dated until as recent as August 2018. Second, the Veteran as likely as not experienced an assault during service. Service records are negative for evidence of an assault during service and for evidence of psychiatric problems related to an assault, as is the medical and lay evidence of record dated until the 2010s. Nevertheless, the Veteran asserts that he experienced an in-service assault. See 38 C.F.R. § 3.304(f)(5). Third, the October 2018 VA examiner found that, despite the lack of direct or circumstantial evidence supporting the claim, the Veteran “appears to meet the criteria for PTSD related to MST [military sexual trauma].” Based on the foregoing evidence, the Board cannot find that a preponderance of the evidence is against the claim. As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt and grant the claim. 38 U.S.C. § 5107(b) (2012), 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND The Veteran has also appealed to the Board a claim for a TDIU. The issue has not been certified to the Board. Nevertheless, the issue should be remanded. Inasmuch as the ratings assigned for thoracolumbar and acquired psychiatric disabilities will impact the TDIU claim, a remand of the TDIU claim is warranted. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: After assigning effective dates and disability ratings for service-connected thoracolumbar and acquired psychiatric disabilities, readjudicate the TDIU claim. If warranted, the issue should then be certified to the Board. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel