Citation Nr: 20002114 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 19-23 391 DATE: January 9, 2020 ORDER The appeal as to the issue of entitlement to an effective date earlier than February 3, 2012, for the award of service connection for left ear hearing loss is dismissed. The appeal as to the issue of entitlement to a compensable rating for atrophy of the left testicle is dismissed. The appeal as to the issue of entitlement to a rating in excess of 10 percent for a left varicocele is dismissed. Reconsideration of the previously-denied claim of entitlement to service connection for a back disability, neck disability, and right ear hearing loss is warranted. Service connection for a back disability is granted. Service connection for a neck disability is granted. Service connection for a neurological disability of the left lower extremity, as secondary to a back disability, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), unspecified anxiety disorder (anxiety), and unspecified depressive disorder (depression), and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an initial compensable rating for left ear hearing loss is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU), to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. During the October 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action withdrew his appeal as to the issues of entitlement to an effective date earlier than February 3, 2012 for the award of service connection for left ear hearing loss, entitlement to a compensable rating for atrophy of the left testicle, and entitlement to a rating in excess of 10 percent for a left varicocele. 2. A November 1989 rating decision denied entitlement to service connection for hearing loss, a back injury, and a neck injury. The decision explained that while the Veteran claimed injuries related to a 1979 motor vehicle accident, there was no record of the accident in his service treatment records (STRs), and while the accident was mentioned in subsequent records it was only by way of history from the Veteran. The Veteran filed a timely Notice of Disagreement (NOD), and in January 1991 the RO issued a Statement of the Case (SOC) that reiterated that there were no official records of an in-service motor vehicle accident. The Veteran did not perfect his appeal of the November 1989 rating decision. 3. In December 2015, the Veteran’s attorney submitted official service department records related to the previously-denied claimed for in-service injuries; these records existed and had not been associated with the claims file when VA first decided the claim; and the Veteran provided sufficient information for VA to identify and obtain the records from the appropriate official source at the time of his original claim. 4. The Veteran’s back disability is proximately due to an injury in service. 5. The Veteran’s neck disability is proximately due to an injury in service. 6. The Veteran’s left lower extremity neurological disability is proximately due to his back disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal regarding issues of entitlement to an effective date earlier than February 3, 2012 for the award of service connection for left ear hearing loss, entitlement to a compensable rating for atrophy of the left testicle, and entitlement to a rating in excess of 10 percent for a left varicocele are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. Reconsideration of the previously-denied claim of entitlement to service connection for a back disability, neck disability, and right ear hearing loss disability is warranted. 38 C.F.R. § 3.156(c). 3. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a neck disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a neurological disability of the left lower extremity, as secondary to a back disability, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1979 to September 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, an October 2018 Board decision determined that the Veteran filed a timely NOD with the rating decision on appeal. The RO subsequently issued an SOC and the Veteran perfected this appeal. The Board acknowledges that the Veteran timely disagreed with the September 2017 denial of service connection for PTSD. However, the RO broadened the issue of entitlement to service connection for anxiety and depression that was denied in January 2013 to encompass all diagnoses of record. Accordingly, the Board has recharacterized the issue as set forth above. In October 2019, the Veteran testified at a videoconference hearing before the undersigned. 1. The appeal as to the issue of entitlement to an effective date earlier than February 3, 2012, for the award of service connection for left ear hearing loss is dismissed. 2. The appeal as to the issue of entitlement to a compensable rating for atrophy of the left testicle is dismissed. 3. The appeal as to the issue of entitlement to a rating in excess of 10 percent for a left varicocele is dismissed. The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision, and withdrawal may be made by the appellant or by his or her authorized representative in writing or on the record during a hearing before the Board. 38 C.F.R. § 20.204. On the record during the October 2019 Board hearing, the Veteran withdrew the issues of entitlement to an effective date earlier than February 3, 2012 for the award of service connection for left ear hearing loss, entitlement to a compensable rating for atrophy of the left testicle, and entitlement to a rating in excess of 10 percent for a left varicocele. The undersigned clearly identified the withdrawn issues and explained that by withdrawing his appeal he would not be entitled to any benefits, including additional money or compensation, for these disabilities. The Veteran’s attorney and the Veteran affirmed that he was requesting a withdrawal as to these appealed issues. See October 2019 Hearing Transcript at 2. Thus, the Board finds that the Veteran has withdrawn these issues explicitly, unambiguously, and with a full understanding of the consequences. As there is no remaining allegation of error of fact or law for appellate consideration regarding these issues, the Board does not have jurisdiction to review them, and they are dismissed. 4. Reconsideration of the previously-denied claim of entitlement to service connection for a back disability, neck disability, and right ear hearing loss is warranted. In August 1989, the Veteran sought service connection for a back injury, neck injury, and hearing loss, among other disabilities. His claim identified certain injuries arising from an August 1979 accident outside of Miramar Naval Air Station, and the Veteran stated that a fellow serviceman was killed in this accident. See August 1989 VA Form 21-526; October 1989 VA Examination Report. A November 1989 rating decision denied service connection for these disabilities and explained that while the Veteran claimed injuries related to a 1979 motor vehicle accident, there was no record of the accident in his STRs, and while the accident was mentioned in subsequent records it was only by way of history from the Veteran. The Veteran timely disagreed with this decision, and a January 1991 SOC reiterated that there were no official records of the Veteran’s claimed accident. The Veteran did not perfect an appeal of that decision, and it became final. However, at any time after VA issues a decision on a claim, if VA receives and associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such service records include service records that are related to a claimed in-service event, injury or disease, so long as these records existed when VA first decided the claim and the claimant provided sufficient information for VA to identify and obtain the records from the respective official source. 38 C.F.R. § 3.156(c). In December 2015, the Veteran submitted a copy of the report of the 1979 accident, which his attorney had obtained pursuant to a Freedom of Information Act (FOIA) request. See December 2015 FOIA Response. This report included contemporaneous statements from witnesses describing their observations of the nature and extent of the Veteran’s injuries immediately following the accident, as well as his hospitalization report. See December 2015 Military Personnel Records. Thus, these records directly relate to claimed injuries for which service connection was previously denied. As these records were not previously of record and as the Veteran provided sufficient information to locate them at the time of his original claim, reconsideration of the Veteran’s original August 1989 claim is warranted, notwithstanding any subsequent denial. 5. Service connection for a back disability is granted. 6. Service connection for a neck disability is granted. 7. Service connection for a neurological disability of the left lower extremity, as secondary to a back disability, is granted. The Veteran asserts that his back and neck pain began following his motor vehicle accident in service. See, e.g., August 1990 NOD. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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 (Fed. Cir. 2004). Initially, the Board observes that as this appeal arises out of a reconsideration of the Veteran’s August 1989 claim, a disability that existed in 1989 could be a current disability for VA compensation purposes. The Veteran’s enlistment examination does not note any spine abnormality, and thus he is presumed to have been sound at entrance. While his separation examination showed a normal spine, his STRs show multiple reports of back and neck pain, including a September 1980 complaint of “intermittent trouble with neck pain” since his motor vehicle accident. See STRs. The Veteran was examined in October 1989. An X-ray report shows a slight loss of height in the anterior portion of the L1 vertebral body. See October 1989 X-Ray Report. An orthopædic report shows his report that he could stand and walk, but crooked, and that this problem gradually improved, and his back would continue to hurt on and off and his neck was sore. The examiner noted limited motion of the thoracolumbar and cervical spine, stated that his left leg “may” be a quarter inch longer than his right, and his impression of the Veteran’s x-rays was a history of old back problems, injury, and subsequent neck injury with symptoms of “traumatic disc trauma” at the lumbosacral junction, with a suggestion of mild left root involvement and minimal objective findings. See October 1989 Orthopædic Report. A neurologic report shows two neurologic symptoms, including neck pain radiating into the back of his head, and pain radiating into the L5 dermatone on the left side. The examiner noted “very definitely pathological toe sign on the right with the present Babinski” but none on the left. The examiner opined that the Veteran was neurologically intact “except for the Babinski response on the right which is probably related to the trauma that he sustained, at least reasonably so.” The examiner also noted that the Veteran’s neck pain was non-neurologic with some lumbosacral nerve root irritation by symptoms only. See October 1989 Neurologic Report. The Veteran was examined in October 2012. The examiner diagnosed current back and neck disabilities, but opined that these were less likely than not due to service because there was a “lack of continuity of care and chronicity of care” and his lumbar and cervical strains should have resolved without sequalae or complication and was more likely due to cumulative life activities. See October 2012 VA Examination Report. A December 6, 2017 imaging report noted “slight anterior wedge compression deformities of the T12 or L1 vertebral bodies that may be developmental or posttraumatic.” See December 6, 2017 Imaging Report. A June 2019 report by Dr. C.C. links the Veteran’s left lower extremity symptoms to lumbar radiculopathy. See June 2019 Dr. C.C. Note. Here, the evidence weighs in favor the Veteran’s claim. The October 1989 orthopædic examiner noted limitation of motion of the lumbar and cervical spine that represents a functional impairment and thus a current disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43 (reduction in range of motion of cervical or thoracolumbar spine is a compensable functional impairment). The neurology examiner related the Veteran’s lower extremity neurologic symptoms to his accident in service, and this opinion also supports an award of the underlying back disability to that injury in service. Likewise, the clinician who interpreted the Veteran’s 1989 X-rays noted a slight loss in height of the L1 vertebral body, and the clinician who interpreted the December 2017 radiograph described a similar deformity in a similar location and opined that it was likely congenital or posttraumatic. As the Veteran was presumed sound at service entry, this is evidence that supports that the 1989 observations were related to trauma during service. Similarly, the October 1989 orthopædic examiner opined that the Veteran’s X-rays were consistent with an “old” injury with a subsequent neck injury and disc trauma. While there is no precise timeline, the evidence from 1989 is probative evidence showing the presence of a current disability shortly after service that was consistent with his in-service injuries. Indeed, the Board observes that the October 2012 examiner’s opinion further supports the Veteran’s claim of a chronic disability in service. In this regard, the examiner opined that an acute cervical strain should have resolved without sequalae or complication, yet the September 1980 STR showed that the Veteran’s pain had been ongoing for more than one year after his August 1979 accident. Thus, the examiner’s opinion shows that the Veteran had a chronic disability in service and not an acute strain. In any event, the October 2012 examiner’s opinion does not weigh against the claim, especially as he did not consider the Veteran’s report of the history of his symptoms, and as he did not reconcile his explanation that the Veteran’s current back disability is more likely due to cumulative life activities with the fact that the Veteran’s symptoms were shown on the 1989 examination report, when he was twenty-seven years old. The Board acknowledges that the Veteran sustained subsequent injuries, including falling off a horse in 2011. However, he had multiple neck and back surgeries well in advance of this recent injury, and in any event service connection is warranted for the Veteran’s current disability circa 1989. Accordingly, as the most probative evidence of record shows that the Veteran’s back, neck, and left lower extremity neurological disabilities are related to his service, service connection for these disabilities is granted. REASONS FOR REMAND 8. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, and to include as secondary to service-connected disabilities, is remanded. Remand is necessary. In this regard, the September 2012 examiner only diagnosed polysubstance dependence, and the Veteran has subsequently been diagnosed with PTSD, depression, and anxiety. Moreover, a diagnosis is necessary that is consistent with the Diagnostic and Statistical Manual (DSM)-5. On remand, he should be afforded another examination with a different examiner who has available the treatment records of these diagnoses. Additionally, if a compensable disability is diagnosed, an opinion should be obtained as to secondary service connection. Updated VA and private treatment records should also be secured. 9. Entitlement to service connection for right ear hearing loss is remanded. Remand is necessary, as the Veteran submitted a private audiological report that, if adequate for rating purposes, could demonstrate right ear hearing loss for VA compensation purposes. See October 2019 Private Audiological Evaluation. On remand, clarification should be obtained from this private audiologist as to whether speech discrimination was assessed using the Maryland CNC test. See Savage v. Shinseki, 24 Vet. App. 259 (2011). Moreover, in light of this evidence and the Veteran’s credible report of a perceived decrease in his hearing acuity, he should be afforded an updated audiological examination. 10. Entitlement to an initial compensable rating for left ear hearing loss is remanded. 11. Entitlement to a TDIU, to include on an extraschedular basis, is remanded. Action on the claim for an initial compensable rating for left ear hearing loss is deferred pending action on the Veteran’s claim for service connection for right ear hearing loss. Action on the claim for entitlement to a TDIU, to include on an extraschedular basis, is deferred pending implementation of the awards of service connection and development of the Veteran’s increased rating claim. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Contact the October 2019 Private Audiologist and clarify what speech discrimination test was used in her evaluation. See Medical Treatment Record Received October 30, 2019. 4. After completing #1 and #2, schedule the Veteran for an examination to determine the nature and etiology of any acquired psychiatric disorder(s) found to be present with an examiner other than the September 2012 examiner. The claims file should be made available to and should be reviewed by the examiner. The examiner should diagnose any acquired psychiatric disorders present, to include PTSD, unspecified depressive disorder, and unspecified anxiety disorder. A diagnosis of PTSD should be explicitly ruled in or excluded, and if diagnosed, the stressor(s) upon which such diagnosis is based should be identified. If the Veteran does not meet the criteria for a diagnosis of PTSD, the examiner should discuss the basis for this conclusion. For each acquired psychiatric disorder identified, state whether it is at least as likely as not (a 50 percent or greater probability) that such disorder: (a) had its onset during active service or is otherwise etiologically related to the Veteran’s service, to include his motor vehicle accident therein; (b) is proximately due to service-connected disabilities; or (c) has been aggravated (worsened beyond natural progression) by service-connected disabilities. In addressing this question, the examiner is advised that contemporaneous service records show that the Veteran was involved in a motor vehicle accident in August 1979 at age seventeen that resulted in the death of his friend, the driver of the motorcycle, and that a February 1980 STR showing he Veteran’s complaint of having felt very nervous since the accident, with an impression of “post-concussion syndrome, possible depression.” Regarding parts (b) and (c), the examiner’s attention is invited to treatment notes suggesting a relationship between his psychiatric symptoms and his physical disabilities. See, e.g., May 7, 2016 Mental Health Treatment Note; July 26, 2017 Mental Health Treatment Note. A complete rationale should be provided for all opinions. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 5. After completing #1 and #2, schedule the Veteran for an examination to determine the presence and current severity of the Veteran’s hearing loss. The claims file should be made available to and should be reviewed by the examiner. The examiner should assess the current severity of the Veteran’s hearing loss, including the presence of a current right ear hearing loss disability for VA compensation purposes. The examiner’s attention is invited to a private October 2019 audiologic report and any clarification obtained from the audiologist. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.