Citation Nr: 20009865 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 14-36 619 DATE: February 6, 2020 ORDER Entitlement to service connection for a lumbar and thoracic spine disability is granted. Entitlement to service connection for a sciatic nerve disability, to include as secondary to a lumbar and thoracic spine disability, is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for chronic bronchitis is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his lumbar and thoracic spine disability is at least as likely as not related to his military service. 2. The Veteran’s sciatic nerve disability is proximately due to his service-connected lumbar and thoracic spine disability. 3. The preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss disability is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar and thoracic spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a sciatic nerve disability, to include as secondary to a lumbar and thoracic spine disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1131, 5017(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1977 to May 1979. In June 2015, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer available to participate in the adjudication of the claim. In October 2019 correspondence, VA notified the Veteran of this and afforded him 30 days to respond as to whether he wished to have another hearing. The Veteran responded that he did not wish to appear at another Board hearing, and thus, adjudication may proceed. In December 2016, the Board remanded the issues on appeal for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). According to the electronic Veterans Appeals Control and Locator System (VACOLS), the Veteran filed a notice of disagreement with respect to a May 2018 rating decision regarding the Veteran’s service-connected sleep apnea, and action on this claim is pending at the regional office (RO). As the RO has acknowledged receipt of the NOD and VACOLS indicates that additional action is pending, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action on the NOD is pending at the RO, this case is distinguishable from Manlincon and a remand is not warranted as to this claim. Since the issuance of the Supplemental Statement of the Case (SSOC) in February 2019, additional private and VA evidence has been added to the claims file. Regarding the private treatment records, the Board notes that a waiver of RO consideration of this evidence is not needed. An automatic waiver of Agency of Original Jurisdiction (AOJ) consideration applies in this case with respect to the private evidence submitted by the Veteran because the Veteran’s substantive appeal was received after February 2, 2013, and the Veteran has not requested the Board to remand the case for AOJ consideration of the evidence. See 38 U.S.C. § 7105 (e). Accordingly, although the Veteran has not waived RO consideration of the records submitted since the SSOC, such a waiver is not required. The Board acknowledges that this automatic waiver has not been found to apply to VA-generated evidence, such as VA examination reports or VA treatment records. 38 U.S.C. § 7105 (e). Concerning the claims of entitlement to service connection for a lumbar and thoracic disability and a sciatic nerve disability, to include as secondary to a lumbar and thoracic spine disability, the Board notes that these claims are granted in full herein. Thus, there is no harm to the Veteran in not returning them to the RO for initial consideration of such evidence. Further, the additional VA examination reports and VA treatment records are duplicative of the previous evidence of record and are not relevant to the Veteran’s claim of entitlement to service connection for bilateral hearing loss. Therefore, that claim may also be adjudicated without a remand for original RO consideration of such records without prejudice to the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided); see also 38 C.F.R. § 19.31(b)(1). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, service connection for certain chronic diseases, including sensorineural hearing loss and organic diseases of the nervous system, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Where 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a lumbar and thoracic spine disability is granted. The Veteran maintains entitlement to service connection for a lumbar and thoracic spine disability. The Board finds that the evidence of record supports a grant of service connection for a lumbar and thoracic spine disability. First, there is competent, credible evidence of a current disability. The Veteran has been variously diagnosed with thoracolumbar spondylosis with lumbar intervertebral disc syndrome (IVDS), mechanical back pain, lumbosacral sprain/strain, facet joint arthropathy, degenerative disc disease, and herniated discs of the lumbar and thoracic spine. See December 2014 VA Examination and September 2019 Private Back (Thoracolumbar Spine) Disability Benefits Questionnaire (DBQ). Second, there is evidence of an in-service event, disease, or injury. The Veteran has competently and credibly described several in-service incidents, including a motorcycle accident, involvement in a bar fight, a fall down stairs, and violent hazing rituals. He has reported that he has had back problems ever since these incidents occurred. The Veteran’s service treatment records document his involvement in a motorcycle accident in August 1978. They also document his reported injuries from the bar fight, including broken toes and complaints of back and rib pain in March 1979. At the March 1979 evaluation, the examiner noted “right side of back has two erythematous streaks.” While the Veteran’s fall down the stairs and involvement in hazing are not specifically documented in his treatment records, they are corroborated by lay statements from other individuals who served with him. Further, his service treatment records also contain a January 1979 X-ray that revealed transverse processes of the thoracic spine. The Board finds the totality of the evidence weighs in favor of finding that injury to the Veteran’s lumbar and thoracic spine occurred during these reported in-service events. At issue is whether a nexus exists between the Veteran’s currently diagnosed lumbar and thoracic spine disabilities and the events and injuries from his active duty military service. There are competing opinions of record. In December 2014, the Veteran underwent a VA examination. There, the examiner endorsed a review of the Veteran’s claims file and performed a physical examination prior to determining that it was less likely than not that the Veteran’s claimed back disability was incurred in or caused by the claimed in-service injury, event, or illness. He reasoned that the available medical records were reviewed and revealed evaluation of, treatment for, and diagnosis of IVDS of the lumbar spine in a private medical record in 1992. He also observed that the Veteran’s service treatment records were silent for evaluation or treatment of a thoracic or lumbar spine condition. He noted the Veteran’s 1978 motorcycle accident and the 1979 altercation which resulted in two erythematous streaks on the right side of the Veteran’s back but stated that there was no chronicity of a back condition documented in the Veteran’s service treatment records. The examiner indicated that the Veteran established care with VA in January 2005 and reported a current history of a thoracolumbar spine condition; however, the examiner again wrote that the available records failed to document the chronicity of the claimed lumbar and/or thoracic spine condition during or since separation from service until the private medical record in 1992. Thus, he concluded that it was less likely than not that the Veteran’s claimed condition was related to his military service. The Veteran submitted a private medical opinion in September 2019. There, the private examiner endorsed a review of the Veteran’s claims file and performed a physical examination of the Veteran prior to determining that it was at least as likely as not that the Veteran’s current lumbar and thoracic spine disabilities were the result of injuries during his military service. The examiner reasoned that it was clear that the Veteran suffered a back injury during service that was noted on X-ray during his service (transverse processes of the thoracic spine observed in January 1979). He further observed that degenerative discs, as the Veteran had, could be the result of a traumatic injury that is associated with pain, weakness, loss of stability or other neurologic changes. The examiner reasoned that any type of injury, from a vehicle accident to an assault such as the Veteran suffered could damage a joint and the connective tissue around it. While the injury itself could heal, the aftermath could change the basic functioning of the joint in such a way that it wears out more quickly than normal. Considering the records and examination, he concluded that the Veteran’s claimed condition was related to his military service. The Board assigns significant probative value to both opinions as each one was predicated on review of relevant evidence and provided supporting explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Thus, the evidence is in equipoise. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a lumbar and thoracic disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a sciatic nerve disability, to include as secondary to a lumbar and thoracic spine disability, is granted. The Veteran seeks entitlement to service connection for a sciatic nerve disability, to include as secondary to a lumbar and thoracic spine disability. The Veteran has been diagnosed with radiculopathy of the bilateral lower extremities affecting the sciatic nerves as secondary to his now service-connected lumbar and thoracic spine disability. See September 2019 Private DBQ. Thus, service connection for a sciatic nerve disability is warranted. 38 C.F.R. § 3.102, 3.310. 3. Entitlement to service connection for bilateral hearing loss is denied. The Veteran seeks entitlement to service connection for a bilateral hearing loss disability. As an initial matter, the record clearly establishes that the Veteran has a current hearing loss disability which meets the criteria set forth in 38 C.F.R. § 3.385, as evidenced by the VA audiometric test findings. Further, the Board finds that the Veteran himself is competent to report his in-service noise exposure. See 38 C.F.R. § 3.159 (a)(2). His DD Form 214 confirms his primary military operational specialty (MOS) as a boiler technician. The Duty Noise Exposure Listing rates the Veteran’s MOS as having a high probability for exposure to hazardous noise, which is consistent with his reported history of military noise exposure. As such, the Board has no reason to dispute the Veteran’s credible reports concerning in-service noise exposure, as his service as a boiler technician would reasonably include exposure to loud noises. See 38 U.S.C. § 1154 (a). Accordingly, the Board finds that the Veteran was exposed to noise during his active duty service. Thus, the crucial question in this matter is whether the current bilateral hearing loss disability is related to his in-service noise exposure. The Board acknowledges the Veteran’s lay statements relating his bilateral hearing loss to his service; however, they are not competent, as the Veteran is a layperson and lacks the training to opine regarding medical etiology. The question of the etiology of a diagnosis is one that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veteran’ Court). The etiology of the Veteran’s hearing loss is a medical determination that requires specialized training and expertise that the Veteran is not shown to possess. The Board turns to the medical opinions of record. The Veteran submitted a private opinion in January 2013. The private examiner observed that she had reviewed the Veteran’s treatment records since separation from the military prior to determining that the Veteran’s diagnosed bilateral hearing loss was at least as likely as not caused by or a result of engine noise exposure from onboard ship. No rationale was provided. In August 2013, the Veteran underwent a VA examination. There, the examiner endorsed a review of the entire claims file, including the Veteran’s service treatment records and post-service medical records, and performed an audiological examination prior to rendering a medical opinion. She determined that the Veteran’s bilateral hearing loss was less likely as not caused by or the result of noise exposure in the military. She reasoned that the Veteran had normal hearing at the time of enlistment and at separation with no significant threshold shift bilaterally. The examiner further explained that the Veteran’s service medical records and service treatment records were silent for complaints of bilateral hearing loss. She also cited an Institute of Medicine (IOM) study that concluded that, based on current knowledge of cochlear physiology, there was no sufficient basis for the existence of delayed onset hearing loss. While the IOM did not rule out that delayed onset might exist, it noted that the requisite longitudinal animal and human studies had not been done and, based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise induced hearing loss, there was no reasonable basis for delayed onset hearing loss. As the August 2013 private examiner did not review the complete record, to include the Veteran’s service treatment records and military personnel records, the Board finds that the basis of her opinion was the Veteran’s own reported history. While the review of service treatment records is not required, here it is significant, as those records do not reveal hearing loss or any significant auditory shift while in service. Thus, the Board finds that the private examiner did not have a sound evidentiary basis for her conclusion that the Veteran’s bilateral hearing loss was due to his in-service noise exposure. Further, the private examiner did not provide any rationale for her opinion. Therefore, this opinion is not afforded any probative value. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). The Board finds that the most probative nexus evidence is the August 2013 VA opinion, as it is supported by rationale based on an accurate medical history with clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Unfortunately, this probative medical opinion weighs against a finding that there is an etiological relationship between the Veteran’s current bilateral hearing loss and noise exposure during service. Further, there is no evidence that the Veteran’s bilateral hearing loss was manifested in service or to a compensable degree in the first year following his separation from active duty. Consequently, service connection for bilateral hearing loss on the basis that such manifested in service and persisted, or on a presumptive bases (as a chronic disease under 38 U.S.C. § 1112), is not warranted. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim for service connection for bilateral hearing loss is denied. See 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for chronic bronchitis is remanded. Specific and relevant evidence concerning the Veteran’s claim of entitlement to service connection for chronic bronchitis (a March 2019 VA Examination) has been associated with the claims file. As there is no indication that the Veteran has waived initial AOJ adjudication of such newly added relevant evidence, a remand is required for the AOJ to consider the evidence and issue a new SSOC. 38 U.S.C. § 7105 (e). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records. 2. When the development requested has been completed, the case should be reviewed by the AOJ based on additional evidence, to include all evidence associated with the record since the February 2019 SSOC. If the benefit sought is not granted, the Veteran and his representative should be furnished an SSOC. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.