Citation Nr: 20021979 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-23 998 DATE: March 30, 2020 REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to lumber spine degenerative arthritis, a postoperative right inguinal hernia, and bilateral lower extremity radiculopathy, is remanded. Entitlement to an initial evaluation in excess of 30 percent prior to September 25, 2018 for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from August 1962 to August 1965 and from August 1966 to August 1969. In a March 2019 decision, the Board denied entitlement to service connection for a cervical spine disability and to an evaluation in excess of 30 percent for bilateral hearing loss prior to September 25, 2018. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran’s attorney and the VA Office of the General Counsel filed a Joint Motion for Partial Remand, which partially vacated the Board’s decision and remanded the above-identified claims for readjudication. In an October 2019 Order, the Court granted the Joint Motion, partially vacated the Board’s March 2019 decision, and remanded the matters to the Board for readjudication. 1. Entitlement to service connection for a cervical spine disability, to include as secondary to lumber spine degenerative arthritis, a postoperative right inguinal hernia, and bilateral lower extremity radiculopathy, is remanded. In the October 2019 Joint Motion, the parties agreed that the September 2018 VA examiner’s opinion was inadequate because of an incomplete rationale. Notably, the September 2018 VA examiner specifically diagnosed the Veteran with degenerative arthritis of the cervical spine. As to the question of nexus, the examiner indicated that the neck condition was not aggravated beyond its natural progression by any service-connected condition, to include the low back condition. No further explanation was provided, and the examiner did not specifically mention the service-connected bilateral lower extremity radiculopathy or right inguinal hernia. It is also noted that the examiner did not provide an opinion on service connection on a secondary basis due to causation. The Veteran should therefore be scheduled for a new examination before the claim can be decided on the merits. In addition, VA treatment records to December 2018 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from December 2018 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to an initial evaluation in excess of 30 percent prior to September 25, 2018, for bilateral hearing loss is remanded. In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). At September 2015 VA audiology treatment speech discrimination test results via CD recordings using NU 6 CNC wordlists were 12 percent in the right ear at 100 dB HL and 8 percent in the left ear at 100 dB HL. At June 2017 VA audiology treatment, speech discrimination scores on the same test were 4 percent in the right ear and 8 percent in the left ear. The speech discrimination test used at the September 2015 and June 2017 VA treatment was not the Maryland CNC test, which is required to be used for VA rating purposes. See 38 C.F.R. § 4.85(a). The October 2019 Joint Motion noted that the Maryland CNC test was not used, and stated that the Board should have addressed the evidence for the purposes of determining whether it was factually ascertainable that an effective date earlier than September 25, 2018 was warranted for the Veteran’s 100 percent rating for hearing loss. Whether the Maryland CNC and NU 6 CNC tests are equivalent is a medical question for which the Board cannot offer an unsubstantiated conclusion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, a medical opinion regarding the tests must be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records from December 2018 to the present. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of his cervical spine disability. The examiner must be given full access to the Veteran’s complete VA claims file and the Veteran’s electronic records for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the diagnosed cervical spine disability is related to an in-service injury, event, or disease, or was incurred within a year of service. The examiner must also provide an opinion regarding whether the diagnosed cervical spine disability was at least as likely as not (50 percent or greater probability) (1) proximately due to any service-connected disability to include lumbar spine degenerative arthritis, a postoperative right inguinal hernia, and bilateral lower extremity radiculopathy, or (2) aggravated beyond natural progression by any service-connected disability to include lumbar spine degenerative arthritis, a postoperative right inguinal hernia, and bilateral lower extremity radiculopathy. The term ‘at least as likely as not’ does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. The reviewer must include in the medical report the rationale for any conclusions expressed, to include descriptions of the medical processes involved and citation to relevant medical literature/treatise as necessary. A report containing unsupported, unexplained, or speculative conclusions will be returned as inadequate. 3. Obtain an opinion from an appropriate VA examiner regarding whether the NU 6 CNC test is the equivalent of the Maryland CNC test. The Veteran should not be scheduled for an in-person examination for hearing loss. The examiner is asked to describe the differences between the Maryland CNC and NU 6 CNS tests, including which test, if any, is more likely to result in a lower speech discrimination score. The examiner is asked to review the record and offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the NU 6 CNC test results from the September 2015 and June 2017 VA treatment indicate at least the same severity of hearing loss as the shown in the testing at the September 25, 2018 examination was present in September 2015 and/or June 2017. The term ‘at least as likely as not’ does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. The reviewer must include in the medical report the rationale for any conclusions expressed, to include descriptions of the medical processes involved and citation to relevant medical literature/treatise as necessary. A report containing unsupported, unexplained, or speculative conclusions will be returned as inadequate. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.