Citation Nr: 20003883 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 18-43 933 DATE: January 16, 2020 ORDER Service connection for cervical strain is granted. Service connection for compression fracture, thoracic T9 spine (claimed as back injury), is granted. An effective date of earlier than May 2, 2017, for service connection for bilateral hearing loss is denied. REMANDED Entitlement to an initial disability evaluation of greater than 0 percent for bilateral hearing loss is remanded. Entitlement to a 10 percent evaluation based upon multiple, non-compensable, service-connected disabilities is remanded. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether a current cervical strain had its onset during or is otherwise related to the Veteran’s period of active service. 2. The competent and probative evidence is at least in equipoise as to whether a current compression fracture, thoracic T9 spine, had its onset during or is otherwise related to the Veteran’s period of active service. 3. The Veteran first filed a claim with VA for of entitlement to service connection for bilateral hearing loss on May 2, 2017. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for compression fracture, thoracic T9 spine, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. An effective date prior to May 2, 2017, for the grant of service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from July 2017 and August 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified, sitting in Des Moines, Iowa, before the undersigned via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Entitlement to service connection for cervical strain. After review of the record, the Board finds that the criteria for service connection for cervical strain have been met. The Veteran contends that his cervical strain is related to his active service. The Board concludes that the Veteran has a current diagnosis of a cervical strain and that the evidence is at least in equipoise that it is related to his active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). At the October 2019 Board hearing, the Veteran testified that he injured his neck and back by falling from overhead bars during his military training. The Veteran reported that he did not immediately seek medical treatment. However, as his symptoms worsened, he received treatment at Fort Gordon. The Veteran’s injury was profiled at that time. According to the Veteran, his bed was elevated to accommodate for his neck injury and that he was recommended to undergo surgical treatment but declined due to the risk of complications. After separation, the Veteran self-treated his condition with over-the-counter pain medication. The Veteran also reported that he was not involved in a car accident in 1968, and that his former spouse was involved the accident with a different male companion. 10/04/2019, Hearing Transcript. The service treatment records corroborate portions of the Veteran’s testimony. The Veteran was treated for a spine injury at Fort Gordon in March 1970, and a physical profile record notes the spine injury. The treatment note references a history of back pain due to an automobile accident, but does not indicate how that medical history was determined. 10/07/1985, STR – Medical, pages 73-74. Additionally, a February 1970 clinical record regarding treatment for a hiatus hernia also referenced a possibility of an automobile accident. However, the record does not definitely indicate whether the Veteran was involved in that accident and is ambiguous as to whether that accident occurred in 1969 or several years earlier. 07/05/2018, STR – Medical. Additionally, the Veteran’s entrance report of medical history and the entrance medical examination reveal that the Veteran was found to be in good health. Furthermore, the entrance medical examination does not indicate whether a clinical evaluation was fully performed and does not indicate whether the Veteran had a pre-existing cervical spine condition due to an automobile accident. 10/07/1985, STR – Medical, pages 14-20. A January 1986 medical opinion indicated that the Veteran was examined and was found to have tenderness to palpitation of the C3-4 area on the right side. The Veteran reportedly sustained an injury when he fell from overhead bars on an obstacle course during his period of active service. The clinician opined that the Veteran has a permanent partial disability due to the aforementioned condition sustained during active service. 01/24/1986, Third Party Correspondence. Additionally, an October 2019 medical opinion indicated that the Veteran was examined and was found to have tenderness over the C3-4 area along with stiffness and decreased range of motion of the neck. The clinician opined that the Veteran’s neck condition is at least as likely as not related to his in-service injury. Additionally, in reaching this opinion, the clinician considered whether the Veteran’s neck condition could have been related to a purported automobile accident. 11/12/2019, Medical Treatment Record – Non-Government Facility. The Board finds that the evidence is at least in equipoise regarding whether the Veteran’s neck condition is related to his active service. For example, the Board places some additional weight on the October 2019 medical opinion because it considered the totality of his medical history. The October 2019 medical opinion also considered whether an automobile accident caused the Veteran’s neck condition, noting that there is no mention of any neck issues in his entrance physical examination. Likewise, the Board places weight on both the October 2019 and January 1986 medical opinions, as the opinions are consistent with the Veteran’s credible and relevant testimony regarding the onset and treatment of his neck condition. In sum, the probative and competent evidence regarding a nexus is at least in equipoise and the benefit of the doubt applies. 38 U.S.C. § 5107(b). Therefore, as all three service connection elements have been established, the Board finds that service connection for cervical strain is warranted. 38 C.F.R. § 3.303. Entitlement to service connection for compression fracture, thoracic T9 spine. After review of the record, the Board finds that the criteria for service connection for compression fracture, thoracic T9 spine have been met. The Veteran contends that his back condition is related to his active service. The Board concludes that the Veteran has a current diagnosis of compression fracture, thoracic T9 spine, and that the evidence is at least in equipoise that it is related to his active service. 38 U.S.C. § 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In an October 2019 Board hearing, the Veteran testified that he injured his neck and back by falling from overhead bars during his military training. The Veteran reported that he did not immediately seek medical treatment. However, as his symptoms worsened, he received treatment at Fort Gordon. According to the Veteran, he was recommended to undergo surgical treatment but declined due to the risk of complications. After separation, the Veteran self-treated his condition with over-the-counter pain medication. The Veteran also reported that he was not involved in a car accident in 1968, and that his former spouse was involved the accident with a different male companion. 10/04/2019, Hearing Transcript. The service treatment records corroborate portions of the Veteran’s testimony. The Veteran was treated for a spine injury at Fort Gordon in March 1970, and a physical profile record notes the spine injury. The service treatment records reference an automobile accident, but do not definitely indicate whether the Veteran was involved in that accident. 10/07/1985, STR – Medical, pages 73-74. 07/05/2018, STR – Medical. Additionally, the Veteran’s entrance report of medical history and the entrance medical examination reveal that the Veteran was found to be in good health, and do not indicate whether the Veteran had a pre-existing back condition due to an automobile accident. 10/07/1985, STR – Medical, pages 14-20. A January 1986 medical opinion indicated that the Veteran was examined and was diagnosed with status post ancient fracture of the T-6 vertebra with resulting somatic musculoskeletal dysfunction and hiatal hernia. The Veteran reportedly sustained an injury when he fell from overhead bars on an obstacle course during his period of active service. The clinician opined that the Veteran has a permanent partial disability due to the aforementioned condition sustained during active service. 01/24/1986, Third Party Correspondence. Additionally, an October 2019 medical opinion indicated that the Veteran was examined and diagnosed with a compression fracture of the T-8 vertebral body. The clinician opined that the Veteran’s back condition is at least as likely as not related to his in-service injury. Additionally, in reaching this opinion, the clinician considered whether the Veteran’s back condition could have been related to an automobile accident. 11/12/2019, Medical Treatment Record – Non-Government Facility. The Board acknowledges the July 2017 VA examination, which diagnosed the Veteran with compression fracture thoracic T-9 spine. The examiner opined that the Veteran’s back condition is less likely than not related to his active service. Specifically, the examiner relied on the lack of documentation of the Veteran’s injury during service, and that the service treatment records referenced an automobile accident. However, the examiner did not consider whether service treatment records confirm that whether the Veteran was involved in an automobile accident and whether he injured his back in the purported automobile accident. 07/17/2017, C&P Exam. The Board finds that the evidence is at least in equipoise regarding whether the Veteran’s neck condition is related to his active service. For example, the Board places some additional weight on the October 2019 medical opinion because it considered whether an automobile accident caused the Veteran’s back condition, noting that there is no mention of any back issues in his entrance physical examination. On the other hand, the July 2017 VA examination is of less weight as it merely relies on the lack of treatment records contemporaneous with the Veteran’s in-service injury, despite the Veteran’s credible and relevant testimony indicating that he did not immediately seek medical treatment until the condition had worsened. The probative and competent evidence regarding a nexus is at least in equipoise and the benefit of the doubt applies. 38 U.S.C. § 5107(b). Therefore, as all three service connection elements have been established, the Board finds that service connection for compression fracture, thoracic T9 spine, is warranted. 38 C.F.R. § 3.303. Earlier Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. Entitlement to an earlier effective date for service connection for bilateral hearing loss. The Veteran contends that he should be service-connected for his bilateral hearing loss disability on a date prior to May 2, 2017. The Board reviewed the record looking for possible claims formal or informal, as applicable. On May 2, 2017, the VA received the Veteran’s fully developed claim for benefits of service connection for bilateral hearing loss, as well as tinnitus, neck injury, and back injury. 05/02/2017, VA 21-526EZ. Subsequently, a July 2017 rating decision granted service connection for bilateral hearing loss and assigned a 0 percent rating, effective May 2, 2017, the date the VA received the Veteran’s hearing loss claim. The Board has reviewed the record but has not found any formal or informal written communication that could be construed as a claim of service connection for bilateral hearing loss prior to the December 14, 2015 claim. The Veteran has been afforded the benefit of the doubt, but the evidence is against an effective date for service connection for PTSD prior to May 2, 2017. See 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. REASONS FOR REMAND Entitlement to an initial disability evaluation of greater than 0 percent for bilateral hearing loss is remanded. The Veteran is currently rated noncompensable for his disability under Diagnostic Code (DC) 6100. He underwent a VA examination in June 2017. The examiner noted that his hearing loss could impact his ordinary conditions of daily life because he reportedly cannot hear out his left ear. Since the last VA examination, the Veteran has asserted at the October 2019 hearing that his disability has worsened. Specifically, he contends that he cannot understand conversations unless he is looking at the speaker, and that he cannot discern the sound of birds or his pickup truck. The Veteran reported that the condition has particularly worsened in the past two years, and that the hearing aids provided by the VA did not fit properly. 10/04/2017, Hearing Transcript. Additionally, an October 2019 statement from a medical doctor, MJF, indicates that the Veteran’s hearing loss has worsened since his last VA examination. It indicates that the Veteran’s rating should be increased to 20 percent; however, it does not reference any audiometric data in support of this conclusion. Since the Veteran’s last VA examination, the competent evidence shows that his disability may have worsened. As such, the Board finds that a new VA examination is warranted to assess the current severity of the Veteran’s disability. Entitlement to a 10 percent evaluation based upon multiple, non-compensable, service-connected disabilities is remanded. The law provides that where a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, a 10 percent evaluation may be assigned, but not in combination with any other rating. 38 C.F.R. § 3.324. Effective May 2, 2017, the Veteran is service connected for bilateral hearing loss and hiatal hernia, both of which are assigned non-compensable ratings. The Veteran is also service connected for tinnitus, currently rated at 10 percent disabling. The Board finds that the Veteran’s claim of entitlement to a 10 percent evaluation based upon multiple, non-compensable, service-connected disabilities is inextricably intertwined with the claim of entitlement to higher rating for bilateral hearing loss, and will defer consideration of this matter. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Request the Veteran to submit any relevant private treatment reports, to include any audiometric data related to the October 2019 statement from MJF, MD, or provide VA with authorization to obtain any such records. 3. After completing directives # 1 and #2, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected bilateral hearing loss, to include a description of the functional impacts of his hearing loss. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.