Citation Nr: 1808064 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-22 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active naval service from February 1967 to July 1970, to include service in the Republic of Vietnam (RVN). This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2012 and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In connection with this appeal, the Veteran testified before the undersigned Veterans Law Judge at the RO in August 2017. A transcript of that hearing has been associated with the claims file. The issue of a rating in excess of 30 percent for chronic adjustment disorder has been raised by the record in an October 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to a compensable rating for bilateral hearing loss is REMANDED to the AOJ. FINDINGS OF FACT 1. In August 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran at his Board hearing that he wished to withdraw the claim of entitlement to service connection for a left knee disability. 2. The Veteran has a back disability, diagnosed as degenerative joint disease (DJD) of the lumbosacral spine, which is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 7105(a), 7108 (2012); 38 C.F.R. § 20.200, 20.202, 20.204 (b)(c) (2017). 2. The Veteran's back disability was incurred in active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for a Left Knee Disability Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). The record shows that the Veteran filed a timely notice of disagreement with the denial of his claim of entitlement to service connection for a knee disability. In June 2014, the Veteran perfected an appeal of that issue. At the Veteran's August 2017 Board hearing, the Veteran's representative stated that he wished to withdraw the appeal of the issue of entitlement to service connection for a left knee disability which was pending before the Board. Such withdrawal is effective the date the correspondence was received at the Board. 38 C.F.R. § 20.204 (b) (3). Accordingly, as the Veteran has withdrawn the substantive appeal, the Board does not have jurisdiction to decide the appeal and it is deemed withdrawn. Service Connection for a Back Disability The Veteran contends that he has a low back disability as a result of his active service. Specifically, the Veteran asserts that while in service, he sustained a fall wherein he landed directly on his back and that his back pain has persisted ever since. Alternatively, the Veteran asserts that he was frequently required to load aircrafts and that he strained his back while doing so. The Veteran's service treatment records (STRs) include many notations of consistent treatment for back pain beginning while in active service. Specifically, in December 1967, the Veteran complained of back pain persisting for several months prior, resulting from a muscle strain. No X-ray was conducted. In August 1968, the Veteran was again treated for low thoracic pain and muscle spasms. Post-service medical evidence clearly illustrated a continuous problem with back pain, and the Veteran asserted that he sought treatment for his back pain immediately after being released from active service. The earliest medical evidence of record indicated that the Veteran sought out medical treatment for his back beginning in January 2009. Medical evidence since that time has confirmed ongoing treatment for the Veteran's low back disability, with consistent statements by the Veteran of worsening pain. VA treatment records from May 2010 showed that the Veteran was being treated for lower back pain for which he was treated with medication. In January 2015, the Veteran specifically reported that he had experienced low back pain since service, and that his back continued to give out regularly with pain being constant. That history of treatment continues through to the most recent VA treatment notes of record in March 2017. The VA Medical Center treatment notes show that the Veteran carries a diagnosis of lumbar degenerative disc disease. In April 2012, the Veteran was afforded a VA examination. The Veteran asserted that he had has had lower back pain since 1967 when he fell while in active service, and that he has had daily lower back pain since that time. X-rays taken at that time revealed arthritis. The examiner then opined that it was less likely than not that the Veteran's low back disability was incurred in or caused by service. The examiner rationalized that while the Veteran's STRs do contain documentation of several clinic visits for low back pain, no X-rays were conducted at that time and the Veteran was able to subsequently be employed as a firefighter and sheriff for a number of years without difficulty. The examiner went on to state that the Veteran's lower back symptoms had seemingly intensified over the past years, making them more consistent with aging. The Board finds that the April 2012 VA medical opinion of record to be inadequate. Primarily, the examiner's opinion provides no acceptable rationale. The examiner seemingly did not consider the Veteran's lay assertions regarding his duties during active service, and did not properly address the Veteran's many instances of back pain during active service when forming an opinion or how those incidents could have impacted the Veteran's current back disability. For those reasons, the VA medical opinion of record is inadequate, and as such, cannot serve as the basis of a denial of entitlement to service connection. At his August 2017 hearing before the Board, the Veteran indicated that he did not have any back pain prior to service. The Veteran testified once more that his back pain began after his fall in service, but that mostly, it was exacerbated by his duties in service to include loading aircrafts daily. The Veteran stated, and the record corroborates, that he sought treatment for his back frequently while in active service and that he has continued to seek regular treatment for such since that time. The Board notes that for certain chronic diseases, set forth in 38 C.F.R. § 3.309 (a), such as arthritis, continuity of symptoms is required when the condition noted in service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, lay evidence can be sufficient and competent 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 the symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board acknowledges that degenerative disc disease specifically is not listed under 38 C.F.R. § 3.309 (a) as a chronic disability. However, arthritis is in fact listed and degenerative disc disease is also a degenerative process similar in nature and can be considered a chronic disability for purposes of presumptive service connection. In this case, the Veteran is competent to identify back pain and report that his symptoms began in service and have continued since that time. The Board finds that the Veteran's testimony with respect to his injuries and symptoms while in service and since to be consistent and credible. While he is not competent to establish a diagnosis of a back disability, as that requires medical imaging and medical expertise, his statements of continuity of symptoms are sufficient to establish a link between his current diagnosis of lumbar degenerative disc disease and his in-service injury. Furthermore, the Board has found the medical opinion of record to be inadequate. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The issue of entitlement to service connection for a knee disability is dismissed. Entitlement to service connection for a back disability is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA examination for his hearing loss disability in June 2015. However, the veteran has asserted that his disability was worsened. While in November 2016, the Veteran underwent an audiological assessment while replacing a hearing aid, the audiologist failed to test the Veteran at the 3000 Hz frequency rendering the audiology results inadequate for rating purposes. Therefore, as the June 2015 VA examination is no longer current, and the results from November 2015 inadequate, the Board finds that a new VA examination is warranted to determine the current severity of the Veteran's bilateral hearing loss disability. In addition, any outstanding current treatment records should be identified and obtained prior to a final decision with regard to the remaining issue on appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA audiology evaluation to determine the current level of severity of all impairment resulting from his service-connected bilateral hearing loss disability. All pertinent evidence of record must be made available to, and reviewed by the examiner. Any indicated tests and studies should be performed. All information required for rating purposes must be provided. 3. Confirm that the VA examination report comports with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the remaining claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant 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