Citation Nr: 1807899 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-07 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for a neck disability, to include as secondary to a low back disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran had active air service from August 1960 to August 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). The issues of entitlement to service connection for a low back and neck disabilities are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Bilateral hearing loss disability and tinnitus are etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred in active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. Tinnitus was incurred in active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran has asserted that he has bilateral hearing loss disability and tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran has reported that during active service he was exposed to hazardous noise in the form of jet engines, heavy equipment, jackhammers, and firearms; and, that he did not utilize hearing protection. The Board finds that the Veteran's report of noise exposure during service is consistent with air service and the Veteran's military occupational specialty (MOS). Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) do not show that the Veteran reported complaints of tinnitus or decreased hearing acuity during active service. However, the Veteran has reported that he first experienced decreased hearing acuity and tinnitus while he was in active service and that his symptoms have continued since that time. The Board notes that the Veteran is competent to report when he first had symptoms of tinnitus and bilateral hearing loss disability and that they have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In February 2014, the Veteran was afforded a VA audiological evaluation. At that time, the examiner diagnosed tinnitus and bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss disability was due to in-service noise exposure. In this regard, the examiner noted that the Veteran's hearing was within normal limits at the time of his separation from active service. The examiner opined that the Veteran's tinnitus was less likely as not caused by or a result of in-service noise exposure. In this regard, the examiner noted that the Veteran did not have hearing loss at separation and there was no mention of ringing in the ears or tinnitus at the time of the Veteran's separation examination. The Board finds the February 2014 VA medical opinion inadequate for adjudication purposes. In this regard, the Board notes that the examiner failed to consider the Veteran's lay statements regarding the onset and continuity of his bilateral hearing loss disability and tinnitus. Further, the examiner heavily based the negative opinion on the fact that the Veteran had normal hearing at separation. That alone is not a sufficient basis for a negative conclusion. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify decreased hearing acuity and tinnitus, and his statements have been found credible. The Board concedes that the Veteran sustained acoustic trauma in active service. The VA medical opinion of record is not a competent opinion against the claims. The Veteran has competently and credibly reported decreased hearing acuity and tinnitus in service. He has also competently and credibly asserted a continuity of relevant symptomatology since service. He has a current diagnosis of bilateral hearing loss disability and tinnitus. Therefore, the Board finds that the evidence for and against the claims of entitlement to service connection for bilateral hearing loss and tinnitus is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. REMAND A March 2014 VA examination report reveals that the Veteran was diagnosed with a lumbosacral spine strain, and lumbar spine arthritis with facet arthropathy. The examiner opined that the Veteran's low back disabilities were less likely than not related to his active service. In this regard, the examiner noted that the Veteran had a diagnosis of a chronic lumbosacral spine strain during active service. However, the examiner noted that the Veteran's record was silent for any further documented treatment of any low back symptoms except for his report of MD and chiropractic care. Further, the examiner reported that the Veteran's current X-rays showed only mild facet arthropathy and degenerative change in the sacroiliac joints, which was noted to be consistent with age related changes. The Board finds that the March 2014 VA opinion is inadequate for adjudication purposes. In this regard, the examiner failed to properly consider the Veteran's reports of back pain during and since service. Further, the examiner failed to properly consider the Veteran's reports of treatment for his back despite the lack of accompanying documenting records. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. Therefore, the Veteran should be afforded a new VA examination to determine the nature and etiology of his back disability. With regard to the claim of entitlement to service connection for a neck disability, as the Veteran has claimed that disability was caused or chronically worsened by his back disability, the Board finds that the issue of entitlement to service connection for a neck disability is inextricably intertwined with the claim of entitlement to service connection for a low back disability. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, current treatment record should be identified and obtained before a decision is made with regard to the remaining issues on appeal. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's back disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present back disability is etiologically related to the Veteran's active service. In forming the opinion, the examiner should presume that the Veteran is a reliable historian with regard to his reports of the onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report(s) and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs