Citation Nr: 18153223 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-44 962 DATE: November 27, 2018 ORDER Entitlement to service connection for thoracolumbar spine disability is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran had a thoracolumbar spine disability that pre-existed her last period of active duty. 2. The evidence of record demonstrates that Veteran’s thoracolumbar spine disability increased in disability during the period of service from April 2009 to August 2011. 3. It is not clear and unmistakable that the increase in disability of the Veteran’s thoracolumbar spine disability was due to the natural progression of the disease. CONCLUSION OF LAW The criteria for entitlement to service connection for thoracolumbar spine disability have been satisfied. 38 U.S.C. §§ 1110, 1153, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.304, 3.306, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1988 to April 1988; from October 1988 to June 1989; from August 1998 to April 1999; from February 2003 to February 2005; and from April 2009 to August 2011, to include service in Iraq from April 2009 to February 2011. This case comes on appeal of a June 2015 rating decision. The Board notes that in her substantive appeal, the Veteran limited the appeal to the issues addressed below. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless it is unmistakable that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Entitlement to service connection for thoracolumbar spine disability The Veteran has a current diagnosis of chronic thoracolumbar strain. She contends that she had a lumbar spine disability that preexisted her entry into service in April 2009, and that this disability was aggravated beyond its natural progression during her active service in Iraq. Upon review of the Veteran’s service treatment records, it does not appear that the Veteran was afforded an entrance examination on or around the date of her entry into active service in April 2009. As such, the presumption of soundness does not attach, and she is not presumed sound upon entry. Prior treatment reports document the presence of a preexisting lumbar spine disability. Indeed, a March 8, 2005 MRI showed degenerative disc disease of L5-S1. The Veteran does not contest that she had a back disability that preexisted her period of active duty service starting April 2009, but rather asserts that this disability was aggravated during service. As noted above, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. This finding must be shown by clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b) (2018). During her last period of active service, the Veteran was deployed to Iraq. Service treatment records from February 2011, immediately after the Veteran returned from Iraq, document low back pain with a need for evaluation. An evaluation, later in February 2011 documented a complaint of lower back pain for the prior nine months while in Iraq that had been exacerbated by wearing interceptor body armor. In March 2011, while being evaluated for midline lower back pain, the Veteran also stated that she believed the beds servicemembers slept on in Iraq further aggravated her back. Due to the back pain, the Veteran underwent an MRI in March 2011. The radiology results showed marrow edema identified at the inferior endplate of L5 and superior endplate of S1 vertebrae. A subsequent March 2011 chest x-ray identified L5-S1 disc desiccation, loss of disc height and a central extruded disc which appeared contiguous with the native chest. A surgical consultation was recommended. In April 2011, a line of duty injury analysis was performed. The examiner determined that the Veteran’s low back pain was aggravated while in Iraq due to an in-service injury, resulting in a diagnosis of lumbago after her return from deployment. The Veteran’s service treatment records support a finding that her preexisting low back disability increased in disability during her tour of service in Iraq. In January 2015, the Veteran underwent a VA contract examination to identify whether her acknowledged pre-existing thoracolumbar injury had been aggravated by service. The examiner opined that it had not. By way of rationale, the examiner stated that the Veteran’s January 2005 separation examination showed low back surgery with no present complaints, and that thoracolumbar strain would be normal due to normal stresses on the back after having back surgery. The Board finds the examiner’s opinion inadequate. Notably, the Veteran’s January 2005 separation examination documented a history of cervical spine surgery, not low back surgery, with retained hardware at the C4, C5 vertebrae. Thus, it appears the VA examiner based the negative opinion on an incorrect reading of the record. Further, the examiner’s opinion does not adequately explain, with discussion of the treatment received during service in 2011 how it is clear and unmistakable—i.e. undebatable—that any increase was due to the disability’s natural progression. Accordingly, the Board does not find the examiner’s opinion to be probative. The remaining evidence of record demonstrates that the Veteran had a pre-existing back disability prior to her last period of service and that disability was well-documented to have increased in disability during her deployment to Iraq. There is no probative evidence making a specific finding, based on clear and unmistakable evidence, that the increase in disability was due to the natural progression of the disability. Indeed, medical evidence during service specifically documents that the Veteran “aggravated” her condition. Based on the foregoing, the Board finds that in-service aggravation is presumed, and the benefit sought on appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran underwent a VA audiological examination in January 2015. At that time, the Veteran’s auditory threshold was not greater than 26 at any of the listed frequencies in either ear. Speech recognition for both the right and left ears was at 96 percent. Thus, a bilateral hearing loss disability was not shown, as it is defined by VA under 38 C.F.R. § 3.385. The Veteran subsequently underwent a private audiometric examination in July 2015. Review of the charted audiometric testing results similarly do not show a hearing loss disability for VA purposes, with no higher than 25 dB loss shown at key frequencies of either ear. Pertinently however, word recognition percentages were shown to be less than 94 percent for each ear. It is not clear whether the recognition test used was the Maryland CNC Test, which is required under 38 C.F.R. § 4.85. In Savage v. Shinseki, the U.S. Court of Appeals for Veterans Claims (Court) held that, “in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports or progress notes, or the Board must explain why such clarification is not necessary.” Savage, 24 Vet. App. 259, 260 (2011). Additionally, the Court specifically named unclear application of the Maryland CNC test as a circumstance warranting remand. Id. at 270. Therefore, on remand, efforts should be taken to clarify the July 2015 private audiogram results in light of VA regulations. 38 C.F.R. § 3.385. The Veteran should then be scheduled for a more current audiological examination. The matters are REMANDED for the following action: 1. With any assistance needed from the Veteran, contact the private audiologist who conducted the July 2015 audiological assessment to determine if the Maryland CNC Test was used in evaluating the Veteran. 2. Schedule the Veteran for a VA audiometric examination. The examiner should review the claims file, and take a history from the Veteran as to the progression of her hearing loss and tinnitus. Upon review of the file, interview and examination of the Veteran, the examiner should respond to each of the following: (a.) Does the Veteran have a hearing loss disability in either ear for VA purposes, as defined by 38 C.F.R. § 3.385? (b.) If so, is it at least as likely as not (50 percent or greater probability) that such disability had onset in, or is otherwise related to in-service exposure to loud noises? For purposes of this opinion, the examiner should assume as true that the Veteran was exposed to helicopter noise as she so describes. (c.) Is it at least as likely as not that the Veteran’s tinnitus had onset in, or is otherwise related to in-service exposure to loud noises? As above, assume as true that the Veteran was exposed to helicopter noise as she so describes. (d.) Is it at least as likely as not that the Veteran’s tinnitus was caused or aggravated beyond its natural progression by a hearing loss disability? 3. Readjudicate the appeal. If the benefits sought are denied, issue the Veteran and her representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel