Citation Nr: 18155044 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-30 476 DATE: December 4, 2018 ORDER The application to reopen a previously denied claim for entitlement to service connection for low back pain is granted. The application to reopen a previously denied claim for entitlement to service connection for cervical radiculopathy is granted. The application to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for low back pain is remanded. Entitlement to service connection for cervical radiculopathy is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. Since the prior final denial, new and material evidence was received sufficient enough to reopen a previously denied claim for entitlement to service connection for low back pain and cervical radiculopathy. 2. Since the prior final denial, new and material evidence was received sufficient enough to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss. 3. The evidence of record supports a finding that the Veteran’s bilateral hearing loss is etiologically related to active military service. 4. The evidence of record supports a finding that the Veteran’s tinnitus is etiologically related to active military service. CONCLUSIONS OF LAW 1. The criteria to reopen a previously denied claim for entitlement to service connection for low back pain have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.159 (2017). 2. The criteria to reopen a previously denied claim for entitlement to service connection for cervical radiculopathy have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.159 (2017) 3. The criteria to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.159 (2017). 4. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a), 3.385 (2018). 5. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a), 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the U.S. Army from November 1965 to November 1967. New and Material Evidence The Veteran seeks to reopen service connection claims for “low back pain with cervical radiculopathy” and bilateral hearing loss. The Board observes that, for VA purposes, the thoracolumbar spine and cervical spine are two separate disabilities. See generally 38 C.F.R. § 4.71a, Formula for Rating Injuries and Diseases of the Spine. Generally, a claim which has been denied in an unappealed Board decision or an unappealed agency of original jurisdiction (AOJ) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing 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). The United States Court of Appeals for Veterans Claims (CAVC) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The CAVC further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence was received to reopen a previously denied claim for entitlement to service connection for low back pain and cervical radiculopathy A June 2008 AOJ rating decision denied on the basis that there was no nexus to service, despite the Veteran’s post-service complaints of back pain. The Veteran was notified of this decision, and his appellate rights, by letter dated June 26, 2008. However, the Veteran did not appeal the decision, nor was new and material received, within one year of the notice of decision. Notably, the Veteran submitted a statement in June 2008 limiting an appeal on a claim of service connection for posttraumatic stress disorder (PTSD). That claim, therefore, is final. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2007). Subsequent to that final decision, the Veteran submitted additional treatment records including a private nexus opinion and provided testimony at a Board hearing. As this evidence is clearly new and material to the basis for the prior final denial, the claim may now be reopened on that basis and reviewed on the merits. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. Whether new and material evidence was received to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss With regards to the Veteran’s bilateral hearing loss claim, the claim was originally denied in an August 2010 rating decision which denied the claim on the basis that the Veteran did not have a current hearing loss disability. The Veteran was notified of this decision, and his appellate rights, by letter dated August 20, 2010. However, the Veteran did not appeal the decision, nor was new and material received, within one year of the notice of decision. That claim, therefore, is final. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2007). Subsequent to that final decision, the Veteran’s treatment records reflect a current diagnosis of sensorineural hearing loss and meets the threshold to be a disability for VA purposes. As this evidence is clearly new and material to the basis for the prior final denial, the claim may now be reopened on that basis and reviewed on the merits. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The threshold for normal hearing is from 0 to 20 decibels, and puretone thresholds above 20 decibels may demonstrate hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). However, hearing loss does not equate as being a “disability” for VA purposes. McKinney, 28 Vet. App. at 24-5. Specifically, hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). 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, 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. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran’s treatment records and most recent VA examination report demonstrate that he experiences current hearing loss for VA purposes. See Id. Moreover, the Board concedes that the Veteran was exposed to military acoustic trauma during service by way of his military occupation specialty (MOS) as he was exposed to helicopter noise, jeeps, planes, without the use of hearing protection. Thus, current disability and in-service incurrence are met. The remaining issue before the Board is a nexus to service. As previously noted, the Veteran also claims entitlement to service connection for tinnitus. With respect to a current disability, the Board notes that lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The presence of tinnitus is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, the Board finds the Veteran has also established a current disability of tinnitus for purposes of service connection. With respect to an in-service injury, the AOJ has already established in-service exposure to acoustic trauma based on the Veteran’s military occupational specialty, and shown by the conceded noise exposure for the Veteran’s bilateral hearing loss claim. As such, an in-service event is therefore established for service connection purposes. By way of background, the Veteran’s pre-induction and separation examinations reflected that the Veteran’s hearing was within normal limits, bilaterally. The claims file includes a March 2010 treatment record where the Veteran was noted to have bilateral sensorineural hearing loss as well as a complaint of recurrent tinnitus. Conversely, the August 2010 treatment records reflect that the Veteran denied a complaint of tinnitus, and described his hearing loss as normal sloping to mild hearing loss in both ears. On examination in October 2012, the Veteran reported recurrent tinnitus which he first noticed intermittent bilaterally approximately 50 years prior. The examiner provided a negative nexus opinion on the Veteran’s tinnitus opining that his service medical record did not show a significant worsening in threshold shift during service. The March 2013 private treatment record noted that the Veteran had a long history with tinnitus and hearing loss which the Veteran attributed to his noise exposure in service. The audiologist concluded that the Veteran’s noise exposure probably does account for his hearing loss, as well as the hearing loss is very likely the cause of his ongoing tinnitus. In connection with the claim, the Veteran underwent VA examination in August 2015, where the examiner noted that the Veteran’s hearing loss and tinnitus are less likely due to noise exposure based solely on the notion that his pre-induction and separation examinations were deemed normal. The Board required a clarifying medical opinion to determine whether the Veteran’s noise exposure during service resulted in delayed onset hearing loss and tinnitus. The May 2018 opinion noted that while assessing the Veteran’s medical records, of the upmost importance was the Veteran’s enlistment and separation audiological assessments which were within normal limits. Moreover, there was no complaint of hearing loss or tinnitus until the Veteran’s 2010 medical evaluation. The examiner further discussed the concept of delayed onset hearing loss, stating that while the studies are promising, they have only been completed in mice and there is currently no evidence that their findings will translate into similar occurrences in human subjects. Thus, based on current medical literature there is insufficient evidence to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. Thus, the examiner dissociated the Veteran’s audiological disabilities with in-service noise exposure, and active military service. Subsequently, the Veteran submitted an additional private treatment record from July 2018 noting that the Veteran had a long history of tinnitus and hearing loss, and his hearing pattern was very similar to where it was back in 2013. The physician opined, “I don’t think it is unreasonable that his hearing loss is on the basis of noise exposure in the military.” The Board finds this evidence to be probative in supporting the Veteran’s claims for service connection. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Moreover, the Board notes that the Veteran’s lay testimony is competent and credible evidence weighing positively on the claim, particularly as it relates to the Veteran’s report of chronic tinnitus, and the onset of his bilateral hearing loss. Thus, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s hearing loss is due to in-service noise exposure. Affording the Veteran, the benefit of the doubt, entitlement to service connection for bilateral hearing loss and tinnitus is granted. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a), 3.385 (2018). In granting these claims, the Board emphasizes that the standard of proof is “unique” to the VA adjudicatory process, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). REASONS FOR REMAND Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. Entitlement to service connection for low back pain is remanded 2. Entitlement to service connection for cervical radiculopathy is remanded. The Veteran reports that while working in the motor pool, he and another soldier were trying to pull a motor from a jeep when the Veteran’s back gave out, and began to ache. The Veteran reported going to sick call, and being told he strained a muscle, and was given medication. The Veteran further reports continued back aches since service. The Board notes that there are multiple back diagnoses of record, including chronic low back pain, lumbar lordosis, mild spondylosis of the lumbar spine with small marginal spurs, moderate to severe degenerative disc disease of the lower cervical spine, and lumbar scoliosis with radiculopathy. The Veteran has provided a medical opinion stating that it is most likely that the Veteran’s current diagnosis of lumbar scoliosis with radiculopathy is most likely caused by or the result of an injury lifting an engine from a jeep in service on the basis that the Veteran reported the onset of his symptoms in service. As this history is not consistent with the entirety of the record, the Board finds that medical opinion is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(1); 38 C.F.R. § 3.159(c)(4) (holding, in relevant part, that in order to trigger VA’s duty to provide an examination or obtain an opinion, there must be insufficient evidence to decide the case); see also 38 C.F.R. § 3.159(c)(4). Moreover, the Board notes that the Veteran’s diagnosis of lumbar scoliosis may be considered a congenital or developmental disorder which is not subject to traditional means of service connection. Thus, further clarification is necessary. 3. Entitlement to service connection for erectile dysfunction is remanded. 4. Entitlement to service connection for right lower extremity radiculopathy is remanded. The Veteran contends that his erectile dysfunction and right lower extremity radiculopathy are proximately due to, or aggravated by his low back condition, including medications associated with treating his condition. As the Veteran’s back claim is being remanded for further examination the Board finds that the additional claims are inextricably intertwined with the back claim inasmuch that a grant of service connection could affect the outcome of these claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, further consideration of the aforementioned claims must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA and private treatment records. 2. Afford the Veteran appropriate VA examinations to determine the nature and etiology of his low back and cervical spine disabilities. The claims folder must be made available to the examiner for review. The examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed thoracolumbar and/or cervical spine disability had its onset or is etiologically related to the Veteran’s period of active service, to include an in-service muscle pull as caused by the Veteran’s reported instance of lifting a motor from a jeep while working in the motor pool. In providing this opinion, the examiner should accept as true the Veteran’s description of a lifting injury although not documented. The examiner is further advised of the Board’s factual finding that the Veteran’s most credible report is that he has not experienced recurrent and/or persistent symptoms of back pain or neuritis since service. The examiner is requested to explain whether the mechanism of injury described by the Veteran was sufficiently severe to result in any current abnormalities of the thoracolumbar and/or cervical spines. 3. Upon completion of the above, and any additional development deemed appropriate, the AOJ should readjudicate the remanded issue(s). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response, the appeal must be returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel