Citation Nr: 1809041 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 11-23 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a higher initial rating for thoracic spine (T12) compression fracture with lumbar spine degenerative disc disease (DDD), rated as 10 percent disabling prior to February 24, 2016, and 20 percent disabling thereafter. 2. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty in the Army from December 2005 to April 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a March 2016 rating decision, the RO granted a 20 percent rating for thoracic spine (T12) compression fracture with lumbar spine DDD, effective February 24, 2016. As this award did not constitute a full grant of the benefits sought on appeal, the issue of entitlement to a higher initial rating remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). When this case was previously before the Board in March 2017, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. This appeal includes documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Hearing Loss The Veteran contends that his hearing loss worsened during service as a result of his exposure to loud vehicles, equipment, helicopters, and weapons. Generally, a veteran is presumed to be in sound condition except for conditions noted when examined and accepted for service. In other words, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304 (b). If there is no condition noted on the entrance examination and the disability is found to have manifested in service, the presumption of soundness attaches. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b); Gilbert v. Shinseki, 26 Vet. App. 48, 54 (2012). Here, the Veteran's enlistment examination report includes multiple audiograms showing bilateral hearing loss, and hearing loss was noted in the summary of defects and diagnoses. Thus, the presumption of soundness is not for application. Under such circumstances, service connection is warranted if the preexisting disorder was aggravated by a veteran's active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a). This presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). A veteran has the burden of showing that there was an increase in disability. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. §1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). If the preexisting disorder underwent an increase in severity during service, clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation. Such evidence includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). The Board noted in the March 2017 remand that in-service audiograms performed in January 2006, May 2007, and at separation in February 2009, in addition to the audiograms performed at entrance, reflected slight worsening of auditory acuity at multiple Hertz levels. Therefore, the Board remanded this issue to afford the Veteran a VA examination to determine whether his documented bilateral hearing loss disability was permanently aggravated during active service. In response to the Board's remand, the Veteran was afforded a VA examination in April 2017 in which the VA examiner found that the pre-existing hearing loss was not aggravated beyond normal progression in military services. Here, the Board finds that given that in-service audiograms performed in January 2006, May 2007, and at separation in February 2009, in addition to the audiograms performed at entrance, reflected slight worsening of auditory acuity at multiple Hertz levels, the correct legal standard is whether there is clear and unmistakable (obvious or manifest) evidence that the bilateral hearing loss was not aggravated by service. As such, an addendum VA opinion should be obtained on remand. Thoracic Spine Disability As noted by the Board in the March 2017 remand, the Veteran was originally assigned a 10 percent rating for this condition under Diagnostic Code (DC) 5243, which governs intervertebral disc syndrome (IVDS) and provides ratings based on the frequency of incapacitating episodes. See 38 C.F.R. § 4.71 (a). To that end, the Veteran has reported flare-ups of back pain throughout the appeal period which render him unable to move. In other words, he has contended that his thoracic spine condition is productive of incapacitating episodes. Notwithstanding, the RO switched the applicable DC to DC 5242, which provides ratings based on limitation of motion. Id. In the March 2017 remand, the Board found that the evidence of record did not adequately address whether the Veteran's back condition was productive of incapacitating episodes and the frequency thereof; the Board instructed that the Veteran be afforded a new VA examination to ascertain the current nature and severity of the thoracic spine disability. The Board specifically instructed that the examination should include range of motion testing, to include pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint and a discussion of the frequency and duration of any incapacitating episodes. In response to the Board's remand, the Veteran was afforded a VA examination in April 2017 that did not include range of motion testing, to include pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint nor a discussion of the frequency and duration of any incapacitating episodes. To this point, the RO obtained an addendum VA opinion in July 2017 in which it was noted that the April 2017 VA examiner was no longer available. The July 2017 examiner stated that the Board asked that it be determined the level of pain on both active and passive motion and in weight and nonweight bearing. The examiner noted that the previous examiner did indicate that there was pain on weight bearing; however, she was not able to provide any further information regarding the above. The July 2017 examiner noted that this information was not previously requested and therefore was not included on the April 2017 examination. As such, the Board finds that the Veteran should be afforded a new VA examination on remand. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran's electronic claims file, including a copy of this remand, to be reviewed by the VA examiner who prepared the April 2017 examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum. If it is determined that another examination is needed to provide the required opinion, the Veteran must be afforded the appropriate VA examination. Following review of the claims file, the examiner should provide an opinion regarding: Was the preexisting bilateral hearing loss disability clearly and unmistakably not aggravated by the Veteran's service? The examiner's attention is directed to the in-service audiograms performed in January 2006, May 2007, and at separation in February 2009, in addition to the audiograms performed at entrance., Clear and unmistakable evidence is evidence that is obvious, manifest, and undebatable, which is a very high likelihood. The term "aggravated" in this context refers to a permanent worsening of the underlying condition beyond the natural progress of the disease, as contrasted to temporary or intermittent flare-ups of symptomatology that resolve with a return to the baseline level of disability. A full and complete rationale for all opinions expressed must be provided. 2. Schedule a VA examination in order to determine the current severity of the service-connected back disability. Access to the electronic claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All tests deemed necessary shall be conducted, including X-rays, and the results reported in detail. The VA examiner is directed to conduct range of motion testing and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. The examination should include testing of the back for pain in active motion, passive motion, weightbearing and non-weightbearing for the joint in question (and if there is any medical basis upon which to find that there is an opposite joint to the spine, then of that paired joint if possible). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should provide information concerning where the Veteran experiences pain during range of motion testing, and if so, at which degree limitation of motion due to pain begins. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. The examiner is asked to specifically discuss the frequency and duration of any incapacitating episodes. The examiner should elicit from the Veteran a complete history of any flare-ups of his low back disability. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran's back disability. The examiner should describe the additional loss, in degrees, if possible. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. If this cannot be done, the examiner should explain why. The examiner is also directed to specifically comment on the following: (a) Whether there is any ankylosis, either favorable or unfavorable, of the spine. (b) Whether the lumbar spine disability has required any periods of doctor prescribed bed rest, and if so, the frequency and duration of the bed rest within the last 12-month period. A rationale should be provided for all opinions expressed. 3. To help avoid future remand, VA must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the matter is returned to the Board. Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing all indicated development, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. The appellant has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).