Citation Nr: 21000567 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-40 652A DATE: January 5, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for a cervical spine (neck) disability is denied. Entitlement to service connection for a left wrist disability is denied. REMANDED Entitlement to service connection for a lumbar spine (low back) disability is remanded. Entitlement to service connection for a disability manifested by sleep impairment as secondary to a lumbar spine disorder is remanded. Entitlement to service connection for a left sciatic nerve disability as secondary to a lumbar spine disorder is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to an initial compensable rating for right ear hearing loss is remanded. Entitlement to an initial compensable rating for linear scars of the right knuckle, left side of back, and left toe is remanded. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss is etiologically related to his in-service, combat noise exposure. 2. The preponderance of the evidence is against finding that a cervical spine injury occurred in service. 3. The preponderance of the evidence is against finding that a left wrist injury occurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left wrist disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1993 to September 1997. He had service in Southwest Asia from December 12, 1994 to January 29,1995 and in Somalia from January 30, 1995 to March 4, 1995. He was awarded the Combat Action Ribbon. In January 2020, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis and sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for left ear hearing loss is granted. The Veteran contends that he has left ear hearing loss related to his combat noise exposure. As noted above, he was awarded the Combat Action Ribbon. See 38 U.S.C. § 1154(b). The Veteran underwent a private audiological evaluation in March 2020 which showed an auditory threshold of 50 decibels at 4000 Hertz. Therefore, he has a current left ear hearing loss disability. See 38 C.F.R. § 3.385. The examiner that conducted that examination noted the Veteran’s history of in-service noise exposure and stated that in his medical opinion it was more likely than not that the Veteran’s hearing loss was caused by his military noise exposure. He explained that the Veteran’s puretone testing demonstrated a systemic pattern of sensorineural hearing loss consistent with noise exposure. As such, the Board finds that the evidence supports a finding that the Veteran’s left ear hearing loss was caused by his in-service noise exposure. Therefore, service connection for left ear hearing loss is granted. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. 2. Entitlement to service connection for a cervical spine (neck) disability is denied. 3. Entitlement to service connection for a left wrist disability is denied. The Veteran asserts that he injured his left wrist, cervical spine, and lumbar spine on November 17, 1994, in Hong Kong when he suffered a laceration to his head due to blunt trauma while getting into a liberty boat. His service treatment records indicate that he jumped up and into the boat while the boat bobbed upwards and that he hit his head on an overhead bar or rail. The Veteran testified in January 2020 that when he struck head on the roof, his entire body snapped back and he landed on his tailbone and left wrist, lost consciousness, and “came to” bleeding. In a January 2020 written statement, the Veteran stated that the water was rough, and the Navy was hesitant to let the sailors get off the ship in those conditions, but the Veteran was one of the first to attempt to get off the ship into the liberty boat. The Veteran noted that boarding was done one by one between waves to limit risk, that he was told to jump, and that when he did, the liberty boat rocked in an unexpected direction. The Veteran noted that he struck the top of his head on the top of the boat which jerked him backward, he fell a few more feet and landed on his tailbone and left wrist which snapped his head back, and he lost consciousness for a minute. He noted that he felt immediate pain in his head, neck, lower back, and left wrist and that when he was brought to the Medical Department on the ship, his head was stitched up, and he was given pain relievers, a wrap for his left wrist, and was ordered to bed and monitoring of his injuries. Further, the Veteran testified that he was told that there were no capabilities to conduct x-rays or an MRI on the ship at that time. He was told that they would have to “helicopter fly” him to a ship offshore in order to have further treatment. Therefore, he opted to take the painkillers and be monitored “in lieu of all of that.” See Hearing Transcript dated in January 2020. He stated that he lived with neck pain throughout his entire military career. The Veteran’s service treatment records show that he suffered a head laceration while getting into a liberty boat in November 1994. He complained of a slight headache. The laceration was sutured and the Veteran was provided Ibuprofen for headaches or tenderness. It was recommended that he lay down and rest. There were no complaints or findings pertaining to the Veteran’s neck or left wrist at that time or any time thereafter during service. The records dated in this timeframe do show complaints and treatment for other conditions, including an upper respiratory infection, contact dermatitis, and a right hand laceration. On the examination for separation from service in July 1997, the Veteran denied “ever having or having now” swollen or painful joints and bone, joint, or other deformity. Clinical evaluation of his upper extremities and spine and “other musculoskeletal” was normal. The first post-service medical evidence showing treatment for a neck disorder is dated in June 2006, when the Veteran presented for an initial evaluation at Short Chiropractic. He complained of dull and aching pain in his neck. He was diagnosed as having cervicalgia and cervical subluxation. There are no post-service medical treatment records concerning the Veteran’s left wrist. The Board finds that injuries to the Veteran’s neck and left wrist were not incurred in service. As noted above, the Veteran was awarded the Combat Action Ribbon, which establishes his combat service. When an injury is reportedly incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Here, however, the Veteran has not asserted that he injured his neck and left wrist in combat. Instead, he reported that these injuries occurred in Hong Kong while getting into a liberty boat in November 1994. Thus, the combat presumption under 38 U.S.C. § 1154(b) is not applicable. The service treatment records document the November 1994 injury when the Veteran hit his head while getting into a liberty boat. However, these records contain no complaints or findings pertaining to the Veteran’s neck or left wrist, despite the fact that he has reported that his left wrist was wrapped. Further, the Veteran testified that he was told that there were no capabilities to conduct x-rays or an MRI on his ship at that time and that they would have to “helicopter fly” him to a ship offshore in order to have further treatment. Treatment or complaints of cervical spine and left wrist problems warranting that the Veteran be flown to another ship for x-rays would ordinarily have been recorded in the service treatment records had they been present, though the Veteran reported that he declined this option and instead opted to take the painkillers and be monitored. Further, the service treatment records show no complaints or findings pertaining to the neck or left wrist for the remainder of the Veteran’s service, and on separation examination in July 1997 he denied ever having swollen or painful joints. Clinical evaluation of his upper extremities and spine were normal on separation examination. This evidence lays a proper foundation for the Board's conclusion that the absence of notations of cervical spine and left wrist injury or problems in the service treatment records tends to show that such injuries did not occur. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Thus, the Veteran’s assertions about suffering an injury to his neck and left wrist during service in November 1994 are not found to be credible. Service connection is also not established for chronic disease of the cervical spine and/or left wrist based on chronicity or continuity, since the evidence weighs against chronicity during service or within one year of separation, and shows that a cervical spine and/or left wrist injury or symptoms were not noted during service. See 38 C.F.R. § 3.303(b); Fountain, 27 Vet. App. at 263-64. Finally, because the evidence does not show that osteoarthritis of the cervical spine and/or left wrist manifested to a compensable degree within one year of separation, service connection on a presumptive basis is not established. See 38 C.F.R. § 3.307. Because the preponderance of the evidence weighs against finding that the Veteran incurred neck and left wrist injuries during service, the Board need not address whether any current cervical spine and/or left wrist disorders are related to service. Further, remand for VA examinations and/or medical opinions is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c). Thus, the record is absent credible evidence of in-service cervical spine and left wrist injuries. The Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine (low back) disability is remanded. Private treatment records from Pro Spine demonstrate September 2010 diagnoses of L5-S1 degenerative disc disease (DDD) and L5-S1 small central disk protrusion. VA treatment records note diagnoses of lumbar spondylosis and DDD. MRI in January 2016 demonstrated DDD L5-S1 and multilevel degenerative joint disease (DJD) most pronounced at L4-L5. Thus, the Veteran has a current lumbar spine disability. The service treatment records are absent complaints, findings or diagnoses of any low back condition during service. However, the Veteran asserts that he experienced low back pain during service as a result of long forced marches with heavy combat loads, runs, and physical training. See Notice of Disagreement, dated February 2015. On remand, the Veteran should be scheduled for an appropriate VA examination to obtain a medical opinion as to whether any current low back disorder is related to his in-service activities. 2. Entitlement to service connection for a disability manifested by sleep impairment is remanded. During his January 2020 hearing, the Veteran testified that he was going to see a private doctor for a sleep study. These records should be obtained on remand. 3. Entitlement to service connection for a left sciatic nerve disability is remanded. The Veteran asserts that his left sciatic nerve condition is secondary to his low back condition. See 38 C.F.R. § 3.310. Because this claim is inextricably intertwined with the claim for service connection for a low back disorder, it must be remanded as this time. 4. Entitlement to service connection for a right wrist disability is remanded. The Veteran contends that he injured his right wrist on June 5, 1996, when he suffered a laceration to his right hand after striking his hand going up a ladder well. The Veteran’s service treatment records indicate that examination demonstrated an approximate one inch slightly jagged laceration on the posterior third digit of the right hand at the base of the knuckle. The Veteran testified that he has had right wrist issues since then. Private treatment records indicate that the Veteran had a Workman’s Compensation claim for an October 2007 right wrist injury, diagnosed as a sprain, which resolved by January 2008. All records for compensation for right wrist injury through a workers’ compensation program should be obtained, as well as the Veteran’s employment physicals from the police force dated from 1998 until his retirement in 2016. Finally, the Veteran should be scheduled for an appropriate VA examination in to obtain a medical opinion as to whether any current right wrist disorder is related to his in-service injury. 5. Entitlement to an initial compensable rating for right ear hearing loss is remanded. At the January 2020 Board hearing, the Veteran testified that his right ear hearing loss had increased since his last VA examination. Further, pursuant to this Board decision service connection has been granted for left ear hearing loss. Thus, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity of his now bilateral ear hearing loss. 6. Entitlement to an initial compensable rating for linear scars of the right knuckle, left side of back, and left toe is remanded. At the January 2020 Board hearing, the Veteran testified that he could not distinguish between the pain in the bone in his left toe and the scar itself bringing into question whether the scar has become painful indicating an increase since his last VA examination. Thus, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the linear scars of the right knuckle, left side of back, and left toe. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s complete records pertaining to any Workman’s Compensation claims concerning his low back and/or right wrist. 2. Make arrangements to obtain the Veteran’s complete medical records, to include employment physicals, pertaining to his employment in the police force from approximately 1998 to 2016. 3. Make arrangements to obtain all records concerning the Veteran’s sleep study that he testified was going to be scheduled. See Hearing Transcript, dated in January 2020. 4. Obtain the Veteran’s VA treatment records for the period from January 2017 to the present. 5. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected linear scars of the right knuckle, left side of back, and left toe. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 7. Schedule the Veteran for an examination(s) by an appropriate clinician(s) concerning his low back and right wrist. After examining the Veteran and reviewing the file, the examiner(s) is asked to provide opinions on the following: (a) Whether it is at least as likely as not (50% probability or more) that the Veteran’s current low back disorder had its onset during service or is related to long forced marches with heavy combat loads, runs, and physical training during service. See Notice of Disagreement, dated February 2015. The examiner should consider that the Veteran reported experiencing back pain during these in-service activities. (b) Whether it is at least as likely as not (50% probability or more) that any current right wrist disorder had its onset during service or is related to the Veteran’s in-service injury to his right hand in June 1996. (Continued on the next page)   All opinions must be supported by rationale. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.