Citation Nr: 18106938 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-08 185 DATE: June 1, 2018 ORDER Service connection for chronic thoracolumbar back strain with spondylosis and scoliosis (“low back disability”) is granted. REMANDED Entitlement to a compensable initial rating for bilateral hearing loss is remanded. FINDING OF FACT The evidence is in equipoise on whether the Veteran’s low back disability is at least as likely as not related to service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1975 to May 1979, and from February 1984 to February 1987. His decorations include an Expert Infantryman Badge. Service connection for a low back disability. The Veteran contends that he injured his low back in 1986 while serving in a training unit at Fort Benning. He asserts that his back has hurt since separating form service in 1987, and that he saw chiropractors from 1988 to 2008 when the pain became unbearable at times and he began seeing a medical doctor. He also asserts that his in-service injury was his only back injury. See the November 2012 application for compensation, December 2013 notice of disagreement, March 2015 VA Form 9. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In this case, the Veteran has current diagnoses of lumbar spondylosis, chronic thoracolumbar strain with scoliosis and chronic low back pain, and facet joint arthropathy (degenerative joint disease). See the September 2013 VA examination report, January 2018 private examination report. In addition, service treatment records (STRs) indicate that in July 1984, the Veteran reported that he had struck his upper lumbar spine on a vehicle three weeks prior. Imaging showed straightening of the curvature, most likely due to muscle spasms. In a January 1987 separation examination, the Veteran’s spine was noted to be clinically normal. The question for the Board is whether the Veteran’s low back diagnoses are etiologically related to the in-service injury or disease. The Board concludes that the evidence is in equipoise on whether the Veteran’s current low back diagnoses are related to service. Post-service treatment records show that beginning in January 2012, the Veteran was seen at a private pain clinic for low back pain that radiated into the right posterior thigh. In February, March, and April 2012, the Veteran had lumbar epidural steroid injections. In a September 2013 VA examination, the Veteran reported the 1984 in-service back injury and denied any other history of back injury. He stated that he experienced progressive problems with low back pain off and on over the years since discharge from the Army, particularly in the last five years. His current symptoms included chronic aching low back pain; frequent radiation of pain across the right buttocks region and into the posterior thigh down to the knee; and frequent numbness, tingling, and burning dysesthesias in the right lateral thigh. The Veteran took Meloxicam, gabapentin, tramadol, and ibuprofen, and occasionally used a back brace. Ranges of motion were normal, including after repetitive-use testing with three repetitions; however, the Veteran had excess fatigability and pain on movement. Examination showed some tenderness in the paraspinal musculature of the lumbosacral spine region, especially on the right side, but no significant muscular spasm or guarding. The spine was normal in symmetry, with no kyphosis, scoliosis, or decreased lumbar lordosis. Posture and gait were erect and normal. The Veteran had mild radiculopathy of the right lower extremity and no other neurologic abnormalities. X-rays showed thoracic rotoscoliosis and lumbosacral dextrorotoscoliosis and were otherwise unremarkable. The examiner diagnosed lumbar spondylosis (per private examination records without imaging documentation) and chronic thoracolumbar strain with scoliosis and chronic low back pain. In October 2013, after reviewing the Veteran’s STRs and post-service treatment records, the examiner opined that it was less than 50 percent probable that the Veteran’s current back problems were related to his in-service injury, as there was no record of ongoing treatment for a back problem until 2012, which was 25 years after the Veteran separated from service. The examiner indicated, however, that the recent x-rays showed finding similar to the 1984 x-rays and that “some possible link may exist” between the Veteran’s in-service injury and his current back condition. The Veteran testified in a December 2017 Board hearing that after separating from service, he sought continuous care for his back injury and that his symptoms had been continuous since service. He also asserted that the pain had gotten worse in the last ten years. In a letter dated in December 2017, a private chiropractic physician, Dr. B.N., stated that the Veteran was a previous patient of his in Henderson, Kentucky, during the 1990s and early 2000s for a low back condition. Dr. B.N. indicated that he did not possess the Veteran’s medical records, but that the Veteran was a patient in his office and that the Veteran stated that his back condition started during his active military service. In January 2018, a private physician, Dr. A.L., completed a disability benefits questionnaire, diagnosing the Veteran with lumbosacral sprain/strain, facet joint arthropathy (degenerative joint disease of the lumbosacral spine), spondylosis/isthmic spondylolisthesis, and chronic low back pain. Dr. A.L. noted that he did not review the Veteran’s claims file and he did not opine on the nature or etiology of the currently diagnosed back conditions. The Veteran’s friend, M.T., submitted a letter in February 2018 indicating that he had known the Veteran for more than 40 years, including prior to the Veteran’s enlistment in the 1980s. M.T. asserted that when the Veteran separated from service in 1987, he stated that he had a back injury that occurred in service. He also stated that the Veteran had received various forms of treatment over the years for his ongoing back injury. The Board finds that the Veteran’s lay statements are credible because they have been consistent and are consistent with the circumstances of his infantry service. The Veteran is competent to describe hitting his back against a vehicle and he is competent to describe his observable symptom of having pain in his back. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran’s statements are also underscored by STRs, medical evidence, and the statement from M.T. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Board also finds that given the Veteran’s documented in-service back injury, his probative testimony as to the continuity of his back pain since separation from service, the letter from Dr. B.N., and the statement from M.T., application of the “benefit of the doubt” rule is warranted. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could obtain an addendum medical opinion that expressly considers the letter from Dr. B.N. However, under the law, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). As such, in resolving all reasonable doubt in the Veteran’s favor, service connection for a low back disability is warranted based on continuity of symptomatology since service. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). REASONS FOR REMAND Entitlement to an initial compensable rating for hearing loss is remanded. The Veteran was most recently examined for this disability in September 2013, and there is evidence that the symptoms have potentially increased in severity since that time. In the December 2017 Board hearing, the Veteran asserted that his hearing had gotten worse since that examination and his representative requested another examination. As such, due to the evidence of worsening since the last examination, as well as the nearly five years since the last examination, a new audiological examination is needed to determine the severity of the service-connected hearing loss. See 38 U.S.C. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). On remand, updated VA treatment records should be obtained. The matter is REMANDED for the following action: 1. Obtain from the VA healthcare system all outstanding relevant treatment records of the Veteran dated from February 2015 to present. All records/responses received should be associated with the claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Schedule the Veteran for a VA audiology examination to determine the nature and severity of the service-connected hearing loss. The claims file and a copy of this remand should be made available to the examiner for review in conjunction with the examination. All indicated studies, tests, and evaluations deemed necessary should be performed. The examiner should report the severity of the Veteran’s hearing loss in terms conforming to the applicable rating criteria. The examiner should also describe the functional effects caused by the Veteran’s hearing loss, to include any effects on employment and daily life. The examiner should clearly outline the rationale for any opinion expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. After completing the above, and any additional development deemed necessary, readjudicate the claim. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel