Citation Nr: 18158889 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-04 755A DATE: December 18, 2018 ORDER Entitlement to service connection for a lumbar spine disability, best characterized as degenerative disc disease with herniation, is granted. REMANDED Entitlement to a compensable evaluation for bilateral hearing loss is remanded. REFERRED The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability was raised in an April 2014 application for benefits, but was incorrectly determined to be on appeal in a June 2014 rating decision and was not addressed further. Thus, it is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The Veteran’s lumbar spine disability, best characterized as degenerative disc disease with herniation, is related to in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability, best characterized as degenerative disc disease with herniation, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1994 to June 1999. This matter come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Although the AOJ considered a subsequent October 2015 rating decision, which in part, denied the claim to reopen service connection for a low back condition as new and material evidence was not received, as the rating decision on appeal, the Board finds the October 2013 rating decision is the correct rating decision on appeal. Within the one-year period following notification of the October 2013 rating decision, VA received an October 2013 notice of disagreement (NOD) from the Veteran. Following issuance of a statement of the case (SOC) in December 2014, a substantive appeal was timely received within 60 days thereafter in January 2015. As such, the October 2013 rating decision is the rating decision on appeal and the claim for service connection for a lumbar spine disability is properly characterized as on the title page of this decision, rather than a claim to reopen. The Veteran’s January 2015, VA Form 9, substantive appeal, reflected his desire to participate in a hearing before a member of the Board. However, in a September 2018 statement, the Veteran’s representative withdrew any pending hearing requests. Accordingly, the Board considers the Veteran’s request for a hearing to be withdrawn. 38 C.F.R. § 20.704 (d), (e). In addition, additional evidence developed by VA, and evidence submitted by the Veteran, was received by VA subsequent to the December 2014 SOC which addressed the claim for service connection for a lumbar spine disability on the merits rather than as a claim to reopen. Specifically, in September 2018, the Veteran’s representative submitted additional evidence and waived AOJ review thereof; however the Veteran did not waive AOJ review of the entirety of the additional evidence which has been associated with the record. See 38 C.F.R. § 20.1304 (c). In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, although the Veteran’s substantive appeal was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record does not reflect that the entirety of the additional evidence was submitted by the Veteran. Nevertheless, in light of the favorable decision below, a remand for the additional evidence to be considered by the AOJ is not warranted. In March 2018, the Veteran’s representative requested an extension of 90 days to submit additional evidence and argument. In June 2018, the Veteran’s representative requested an extension of 30 days and in July 2018 she requested an additional 45 days, which were granted by the Board in June 2018 and July 2018, respectively. However, as the Veteran’s representative did not request an additional extension of time, and as the prior extensions of time have elapsed, the Board may proceed with appellate review. Finally, in March 2018, the Veteran submitted a NOD as to determinations of a March 2017 rating decision. Specifically, he disagreed with the effective date assigned for the grant of service connection for major depressive disorder with anxious distress, the denials of service connection for bilateral hip disability and asthma, the evaluations assigned for his right knee disability and left knee disability and for a finding that entitlement to individual employability was moot. The record does not reflect a SOC has been issued with respect to these claims. Generally, in circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to the AOJ to direct that an SOC be issued. Manlincon v. West, 12 Vet. App. 238 (1999). However, the Veterans Appeals Control and Locator System (VACOLS) indicates that the AOJ is already taking action on these issues as they remain in advance certification status. Thus, the Board does not have jurisdiction over these matters, and a remand is not warranted at this time. However, as VACOLS does not reflect the AOJ is taking action as to entitlement to a compensable evaluation for bilateral hearing loss, such is addressed in the remand below 1. Entitlement to service connection for a lumbar spine disability The Veteran primarily contends he has low back disability related to his active service, specifically as referenced by his representative in September 2018 argument, that he suffered a low back injury while loading coaxial cable into a truck. In this regard, a March 1995 service treatment record documents the Veteran complained of low back pain after lifting an 80-pound box and an April 1997 service treatment record documented another complaint of low back pain. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board concludes that the Veteran has a current low back disability, best characterized as degenerative disc disease with herniation,. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). However, other medical records also reflect other lumbar spine diagnoses. Specifically, a January 2013 private medical letter, from Christian Chee, D. C., cited to August 2011 x-rays which revealed, in pertinent part, segmental dysfunctions at L3-S1, a levoscoliotic curve with the apex at L5 measuring 11 degrees, and narrowing of disc spaces, as with as arthritic changes anteriorly and bilaterally. In October 2013, VA obtained a medical opinion but the examiner did not clearly identify a diagnosis but generally noted a current lumbar spine condition. A September 2014 back conditions disability benefit questionnaire endorsed a diagnosis, in pertinent part, of lumbar spine strain and an associated radiology report found a normal lumbar spine although technically suboptimal due to the Veteran’s body habitus. June 2015 VA imaging provided an impression of chronic degenerative disc disease along the lumbar spine and December 2015 private imaging noted mild disc height loss seen L2-3 through L5-S1 associated with disc desiccation, fatty discogenic endplate changes at L5-S1, and that a left subarticular 7 mm disc protrusion at L5-S1 was seen effacing the subarticular recess and posteriorly displacing the left S1 nerve roots without evidence of impingement. Thereafter, a January 2016 private medical record, from a neurosurgeon, endorsed a diagnosis of chronic degenerative disc disease with disc herniation of L5-S1 left and an October 2016 VA treatment record diagnosed lumbar spondylosis, lumbar degenerative disc disease, mild lumbar facetogenic pain at L4-5 and L5-S1 and lumbar myofascial pain. Most recently, in an August 2018 private medical letter, Steven Maron, M. D., cited to the December 2015 imaging of the lumbar spine which noted a disc height loss from L2 to L5-S1, disc protrusion and subcutaneous edema overlying L2 and L3 spinous processes and that following this consultant, a neurosurgeon found the Veteran had chronic degenerative disc disease with herniation and resultant back pain. Thus, the Board finds the Veteran’s lumbar spine disability is best characterized as degenerative disc disease with herniation as reported by a neurosurgeon in the January 2016 private medical neurosurgeon and reflected in the August 2018 private medical letter from Dr. Maron. The October 2013 VA examiner found the Veteran’s claimed lower back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, as the October 2013 VA examiner’s opinion was primarily and inaccurately based on a single in-service report of low back pain rather than the existence of two reports of in-service low back pain, it lacks probative value and thus a September 2014 back conditions disability benefit questionnaire was subsequently obtained. The September 2014 VA examiner found the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event or illness. In support of such, the September 2014 VA examiner explained that, while the Veteran complained of low back pain in March 1995 and April 1997, his medical examination and report of medical history of October 1997 revealed no significant findings and he did not complain of any low back pain. The September 2014 VA examiner noted a July 1998 report of medical history also revealed he was in good health with no complaints of a back problem, and that, thereafter, there were no other medical records to substantiate his claim that his back condition that initially started in 1995 had been chronic or persistent as the only other records with regard to his back were from 2011 when he had multiple chiropractic treatments for low back pain. The September 2014 VA examiner found that due to the fact that there was no medical evidence to substantiate his claim that his back condition from the initial injury of 1995 persisted all those years, it was her opinion that the Veteran’s back condition was less likely than not incurred during military service as his chiropractic treatment of 2011 was about 14 years after his military release and about 16 years after his initial injury in 1995. Conversely, in January 2013, Dr. Chee, found the back pain the Veteran had been experiencing may have been caused by his active duty in the armed forces as his findings upon examinations as well as the x-rays indicated there was some previous trauma to the Veteran’s spine, which was indicative of the type of injury the Veteran sustained while in the armed forces. Further, he explained that excessive physical activity combined with the added weight of gear/packs led to an increase in pressure and stress on the entire skeletal system, especially the lower spine and that running and jumping with additional weight may also have exacerbated the injury sustained by Veteran. Similarly, in an August 2018 opinion, Dr. Maron noted the Veteran’s military occupation involved lifting and transporting heavy equipment repeatedly, which clearly placed him at risk for cumulative spinal trauma. Dr. Maron found in light of the occupational risk as well as chronic clinical history, the Veteran’s lumbar spine disability was at least as likely as not to have arisen during service and resulted from activity during service. Dr. Maron also noted the Veteran did not seek medical treatment until the back pain became disabling, so, not surprisingly, documentation from the time of service was lacking. After review of the record, the Board finds that the evidence is at least in equipoise with regard to the issue of entitlement to service connection for a lumbar spine disability. In this regard, the Board finds the January 2013 and August 2018 private opinions to be considered highly probative, as they are accompanied by sufficient rationale and are supported by other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Specifically, contrary to the September 2014 VA examiner’s findings, also of record is a March 2016 statement from a fellow serviceman C. M. B., which stated, in part, that during his time stationed with the Veteran he was able to observe that the Veteran was unable to fully utilize the muscles of his lower back. Further, in his January 2013 opinion, Dr. Chee stated, in part, he had been treating the Veteran since August 2011 for chronic low back conditions and during his first examination the Veteran stated he had been having these pains on and off for over 17 years. Further, as discussed above, in his August 2018 opinion Dr. Maron also noted the Veteran did not seek medical treatment until the back pain became disabling. Therefore, having carefully considered the claim in light of the record and the applicable law, the Board finds that the evidence is in equipoise as to whether the Veteran’s lumbar spine disability, best characterized as degenerative disc disease with herniation, is etiological related to service. In applying the benefit of the doubt to the claim, as required by law, the Board finds that service connection for lumbar spine disability, best characterized as degenerative disc disease with herniation, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. A June 2014 rating decision, in part, continued a noncompensable evaluation for bilateral hearing loss. In July 2014, the Veteran submitted a timely NOD as to the noncompensable evaluation. The record does not reflect a SOC has been issued with respect to this claim nor does VACOLS reflect the AOJ is taking action with respect to this claim. Accordingly, the Board must remand the claim to direct that an SOC be issued as to the issue of entitlement to a compensable evaluation for bilateral hearing loss. Manlincon, 12 Vet. App. at 240-41. The matter is REMANDED for the following action: Issue a SOC pursuant to the NOD received in July 2014, as to the rating decision in June 2014, which the Veteran is appealing for entitlement to a compensable evaluation for bilateral hearing loss. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations, and afford   the appropriate period for response. Only if a timely substantive appeal is received for such issue, should the issue be forwarded to the Board for appellate consideration. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel