Citation Nr: 18158121 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-00 787 DATE: December 14, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a low back disability is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a left ankle disability is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a right ankle disability is reopened. Service connection for a low back disability is granted. Service connection for a left ankle disability is granted. Service connection for a right ankle disability is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a February 1978 rating decision, the RO denied entitlement to service connection for a low back syndrome and for residuals of injury to the right and left ankles. The Veteran did not file a Notice of Disagreement nor perfect his appeal. Additionally, new and material evidence was not submitted within one year of the February 1978 rating decision. 2. The evidence received since the February 1978 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denials and relates to an unestablished fact necessary to establish the claims of entitlement to service connection for a low back syndrome and for residuals of injury to the right and left ankles. 3. The Veteran’s low back disability manifested in service and is attributable to service. 4. The Veteran’s left ankle disability manifested in service and is attributable to service. 5. The Veteran’s right ankle disability manifested in service and is attributable to service. CONCLUSIONS OF LAW 1. The February 1978 rating decision denying service connection for a low back syndrome and for residuals of injury to the right and left ankles is final. 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. New and material evidence has been received and the claims of entitlement to service connection for a low back disability, for a left ankle disability and for a right ankle disability are reopened. 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a low back disability have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a left ankle disability have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. 5. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a right ankle disability have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1967 to June 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal of May 2012 and February 2013 rating decisions. In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. New and Material Evidence In a February 1978 rating decision, the RO denied entitlement to service connection for a low back syndrome and for residuals of injury to right and left ankles. The Veteran did not perfect his appeal or submit new and material evidence within one year of the February 1978 rating decision. Therefore, the decision became final. The Board finds that the evidence received since the October 2008 rating decision is both new and material to the claims. See 38 C.F.R. § 3.156, 20.302, 20.1103. Specifically, in a May 2013 letter, Dr. G. H. related the Veteran’s lumbar spine disability and disabilities of both ankles to injuries sustained during active duty service. Accordingly, the claims of entitlement to service connection for a lumbar spine disability and for left and right ankle disabilities are reopened and will be considered on the merits. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran is currently diagnosed as having degenerative disc disease of the lumbar spine and calcaneal spurs of the both ankles. There is evidence of an in-service event, disease, or injury. In October 1969, the Veteran twisted his left ankle. In April 1970, he stepped on a stone and again sprained the left ankle. In February 1969, the Veteran sprained his right ankle. In a July 1969 physical report, the Veteran stated that he had developed low back pain five months before the exam. X-rays of the spine were normal and a lumbosacral strain was diagnosed. Moreover, the Veteran testified to injuring his lumbar spine and ankles during service. Regarding nexus, there are two competing medical opinions. Following VA examinations of the lumbar spine and ankles in October 2011, the VA examiner opined that the disabilities of the lumbar spine and bilateral ankles were not incurred in or caused an injury, event or illness in service. The examiner provided rationales for the opinions based on a review of the evidence. In contrast, in a May 2013 letter, Dr. G. H. provided a positive medical opinion with respect to the lumbar spine disability and the bilateral ankle disability. The physician wrote, “I think the patient sustained annular tear injury to the disc of L4-5 when he was in service as well as ligamentous injuries to the ankles.” This opinion was based a thorough physical examination of the Veteran and with consideration of the Veteran’s reports of in-service injuries to this lumbar spine and ankles. While the physician used the phrase “I do think,” reading the opinion as a whole and in the context of the evidence of record, the physician was not indicating the type of uncertainty that has been found by the United States Court of Appeals for Veterans’ Claims (Court) to be speculative and thus non-probative. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). See also Hood v. Shinseki, 23 Vet. App. 295, 29899 (2009) (medical opinion is speculative when it uses equivocal language such as “could” or “might,” without any other rationale or supporting data). Rather, the physician was simply indicating that this was his opinion and then stated it definitively. In this case, the physician’s opinion was based on his examination of the Veteran and the fact that the Veteran’s symptoms of low back pain and bilateral ankle pain were ongoing since service. This is a sufficient basis on which to grant service connection for the low back disability and for the left ankle and right ankle disabilities. The evidence is thus at least evenly balanced as to whether the Veteran’s disabilities of the low back and both ankles are related to his in-service injury. Hence, entitlement to service connection for a low back disability, a left ankle disability, and a right ankle disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA audiology examination in January 2013 at which time he was diagnosed as having bilateral hearing loss. The examiner conceded in-service noise exposure related to the Veteran’s MOS. The examiner, however, opined that the Veteran’s hearing loss was less likely than not caused by his active military service. The rationale provided was that the separation hearing test showed normal hearing in both ears with no threshold shifts during service. However, the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service as opposed to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board therefore finds that an additional medical opinion is warranted. The matter is REMANDED for the following action: 1. Forward the claims file to an appropriate VA examiner to ascertain the presence, nature and likely etiology of bilateral hearing loss. The Veteran may also be scheduled for another VA audiology examination if deemed necessary. The VA examiner should specifically comment on the following: Is it at least as likely as not that the Veteran’s bilateral hearing loss is related to his noise exposure during military service? It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. A complete rationale must be given for all opinions and conclusions expressed. 2. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel