Citation Nr: 21002578 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-34 403A DATE: January 14, 2021 ORDER Entitlement to service connection for degenerative joint disease of the cervical spine is granted. Entitlement to service connection for bilateral sensorineural hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a respiratory disability to include recurrent pneumonia and bronchitis is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, he has experienced intermittent neck pain related to his degenerative joint disease of the cervical spine since service. 2. Resolving all reasonable doubt in favor of the Veteran, his bilateral sensorineural hearing loss is related to his military service. 3. Resolving all reasonable doubt in favor of the Veteran, his tinnitus is related to his military service. 4. Resolving all reasonable doubt in favor of the Veteran, his respiratory disability to include recurrent pneumonia and bronchitis began during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative joint disease of the cervical spine are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). 2. The criteria for entitlement to service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). 3. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). 4. The criteria for service connection for a respiratory disability to include recurrent pneumonia and bronchitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), (c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from September 1958 to September 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in October 2013. The Board remanded the case to the AOJ in February 2019. Pursuant to the Board’s remand, the AOJ notified the Veteran in September 2019 that an examination had been requested through a private medical facility in order to determine the current level of his disability; and stated the provisions for failure to report for a VA examination. In October 2019, VA received notification that the Veteran had failed to appear for VA examinations for his claims of entitlement to service connection for hearing loss and tinnitus. See also October 2020 supplemental statement of the case (SSOC). There is no indication that the examination notices that were addressed to the Veteran were returned to VA as undeliverable, nor has the Veteran provided any rationale showing good cause or explaining why he failed to report for the examinations. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993); Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994). As such, the Board finds that there has been substantial compliance with the Board’s February 2019 remand; and no further development needs to be taken to schedule the Veteran for a VA examination. See Stegall v. West, 11 Vet. App. 268 (1998); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); 38 C.F.R. § 3.655(a), (b). Thus, the Veteran’s claims shall be decided based on the evidence of record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a neck disability The Veteran seeks service connection for a neck disability, which he asserts is related to service. The Board has carefully reviewed the evidence of record and finds that the Veteran’s neck pain began during service and has been chronic and continuous since service. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for degenerative joint disease of the cervical spine have been met. At the outset, the Board notes that a current diagnosis of degenerative joint disease of the cervical spine has been established. An August 1992 VA cervical spine x-ray revealed osteoarthritis and degenerative disc disease of the cervical spine. See also September 2012, June 2013, and August 2013 VA treatment record. The Board finds that the Veteran’s neck disability had its onset during a period of qualifying service. A May 1961 service treatment record reflects that the Veteran sustained abrasions to his body after he reportedly fell from a horse. The Board acknowledges the testimony of the Veteran in support of his claim, and notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board notes that the Veteran later contradicted his initial statement in May 1961 that he had fallen from a horse. In September 2018 the Veteran testified that he had fallen off of a car during service, which caused his neck condition. Despite this however, the Board finds the Veteran’s September 2018 testimony to be competent and credible based upon his explanation to a VA examiner in October 2019 that he had initially reported falling off of a horse because he was afraid of being court-marshalled for standing on top of a moving car. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that there is a nexus between the Veteran’s degenerative disc disease of the cervical spine and service. Post-service treatment records reflect that the Veteran was initially treated for neck pain in October 1978. In October 2019, a VA examiner opined that it was at least as likely as not that the Veteran’s neck condition began in service. The examiner noted that the Veteran’s service treatment records confirmed that he had sustained abrasions to his back during service, which indicated that he mostly landed on his back. Further, the Board notes in September 2020 VA requested an addendum opinion from the October 2019 VA examiner because the examiner indicated that the Veteran did not have or ever have been diagnosed with a cervical spine (neck) condition. However, the Board notes that a preponderance of the evidence establishes that the examiner was aware of the Veteran’s diagnosis of degenerative disc disease of the cervical spine despite also reporting that there was no current cervical spine disability. Specifically, the examiner noted that an October 2019 x-ray revealed degenerative intervertebral disc space narrowing. Thus, the Board finds that the October 2019 VA opinion was competent, credible and probative, and an addendum opinion was not necessary. See 38 C.F.R. § 3.304(c); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board notes in response to VA requests for an addendum opinion, the examiner changed her opinion in September 2020 and opined that the Veteran’s neck condition was not related to service and due to the natural aging process, and concluded that the previous opinion was in error without further explanation. However, based upon the Board’s finding that the initial October 2019 VA opinion was competent, credible and probative, the September 2020 addendum opinion from the examiner cannot be afforded greater probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for degenerative disc disease of the cervical spine is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral sensorineural hearing loss 3. Entitlement to service connection for tinnitus The Veteran seeks service connection for bilateral hearing loss and tinnitus, which he asserts is related to service. The Board has carefully reviewed the evidence of record and finds that the Veteran’s symptoms of bilateral hearing loss and tinnitus have been chronic and continuous since discharge from service. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral sensorineural hearing loss and tinnitus have been met. Sensorineural hearing loss and tinnitus are chronic diseases. See 38 C.F.R. §§ 3.303(b); 3.309(a). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; see also McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., under 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155 (1993). To establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, supra (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). At the outset, the Board notes that a current diagnoses of bilateral sensorineural hearing loss and tinnitus have been established. A March 1988 private treatment record revealed bilateral hearing loss at 4000 Hertz and a diagnosis of tinnitus and bilateral sensorineural hearing loss from November 2002. See also September 2019 VA treatment record. The Board finds that the Veteran’s bilateral sensorineural hearing loss and tinnitus had their onset during a period of qualifying service. A September 1958 enlistment medical examination revealed left and right ear whispered voice of 15/15. Although whispered/spoken voice tests cannot be considered as reliable evidence of hearing loss, the Board also notes that the Veteran had a normal clinical evaluation of his ears; and the medical examiner noted that the Veteran had a rating of 1 for his hearing and ears, under the PULHES rating system; which was the highest rating and indicated that his hearing would not result in any limitations in military assignments. Id. See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993); Horn v. Shinseki, 25 Vet. App. 231 (2012). Thus, the Board finds that the Veteran was presumed to have been in sound physical condition as to his ears and hearing at enlistment in service. The Board concedes that the Veteran was exposed to hazardous noise during service. Due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). The Veteran’s DD-214 notes that the Veteran’s military occupational specialty (MOS) was in aircraft engine mechanic. The Veteran’s MOS has been shown to have a “highly probable” likelihood of exposure to hazardous noise. In addition, the Board finds that the Veteran had some hearing loss at separation from service. Service treatment records reflect that the Veteran was afforded an audiogram in February 1962. The Board notes that prior to November 1967, service departments consistently used American Standards Association (ASA) units to record puretone sensitivity thresholds in the audiometric measurement. VA currently uses International Standards Organization-American National Standards Institute (ISO-ANSI) units. For purposes of comparison between the service audiometric data and more recent VA audiometric data, VA must convert the ASA measurements recorded in service to the comparable ISO (ANSI) measurements. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: 15 at 500 Hz, 10 at 1000 Hz, 10 at 2000 Hz, 10 at 3000 Hz, and 5 at 4000 Hz. The units as recorded in the examination have been converted to ISO-ANSI units, which are represented by the figures in parentheses below. The February 1962 audiogram, converted to ISO units, revealed right ear decibel thresholds of 25 (10+15), 15 (5+10), 15 (5+10), 15 (5+10) and 0 (-5+5) dB and left ear decibel thresholds of 20 (5+15), 10 (0+10), 10 (0+10), 25 (15+10) and 5 (0+5) dB at frequencies of 500, 1000, 2000, 3000 and 4000 Hertz, which revealed some hearing loss during service. See Hensley, supra. But see September 1962 separation medical examination. The Board finds that the statements of the Veteran are competent and credible and support a finding that the Veteran did not have symptoms of hearing loss prior to service and began noticing problems with his hearing shortly after separation from service. See Jandreau, supra; Buchanan, supra; Layno, supra. See September 2018 Board Hearing. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that there is a nexus between the Veteran’s current diagnosis of bilateral sensorineural hearing loss and service; as well as a nexus between the Veteran’s tinnitus and service. A September 2019 VA treatment record revealed right ear hearing loss at 3000 Hertz and left ear hearing loss at 2000 Hertz and the Veteran reported that he had ringing in his ears for as long as he could remember. The treatment provider noted that the Veteran reported that he had been exposed to planes on the flightline with no hearing protection for four years in service. The Veteran also reported that he had some occupational and recreational noise exposure after service with the use of hearing protection. In November 2019 a VA treatment provider opined that the Veteran’s bilateral sensorineural hearing loss was most likely due to military noise exposure around aircraft. Thus, the Board finds, that the November 2019 VA treatment record coupled with the other evidence of record including a September 2019 VA treatment record, service treatment records, military personnel records, and post service treatment records, establish that the Veteran’s bilateral sensorineural hearing loss and tinnitus are related to service. There is no contrary medical opinion of record. Thus, resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for sensorineural bilateral hearing loss and tinnitus is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. 4. Entitlement to service connection for pneumonia The Veteran seeks service connection for pneumonia, which he asserts is related to service. The Board has carefully reviewed the evidence of record and finds that the Veteran’s current respiratory disability to include recurrent pneumonia and bronchitis began during service. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a respiratory disability to include recurrent pneumonia and bronchitis have been met. At the outset, the Board notes that a current diagnosis of recurrent pneumonia/bronchitis has been established. See October 2019 VA treatment record. The Board finds that the Veteran is presumed to have been in sound respiratory condition prior to service. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, 396-397 (2009). Medical history and examination reports for enlistment reflect that the Veteran had a normal clinical evaluation of the lungs and chest; and a medical examiner noted that the Veteran had a rating of 1 for his physical capacity or stamina under the PULHES rating system; which was the highest rating and indicated that his physical capacity would not result in any limitations in military assignments. See McIntosh, supra; Horn, supra. Service treatment records reflect that the Veteran was repeatedly treated for symptoms of chest pain, coughing and difficulty breathing; and had been diagnosed with pneumonia, bronchopneumonia, bronchitis and pericarditis. See January 1960, February 1960 and December 1961 service treatment records. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that there is a nexus between the Veteran’s current respiratory disability to include recurrent pneumonia and bronchitis, and service. Post-service treatment records reflect treatment for pneumonia from at least March 2009 and the Veteran was repeatedly treated for recurrent pneumonia and bronchitis. See May 2018, September 2019 and October 2019 VA treatment records. In October 2019, a VA examiner opined that it was at least as likely as not that the Veteran’s respiratory condition was related to service. The examiner noted that the service treatment records confirmed that the Veteran had chest pain and was admitted to the hospital in 1960 and was diagnosed with pneumonia and pericarditis. The examiner noted that the Veteran reported that he was easily fatigued and would become short of breath. The examiner noted that the Veteran had nodules in his lungs for years. See also September 2019 VA treatment record. Further, the Board notes in September 2020 VA requested an addendum opinion from the October 2019 VA examiner because the examiner indicated that the Veteran did not have or ever have been diagnosed with a respiratory condition. However, the Board notes that a preponderance of the evidence establishes that the examiner had found that the Veteran had a current respiratory condition that was related to his current respiratory issues, which included shortness of breath, pneumonia, and nodules in his lungs. Thus, the Board finds that the October 2019 VA opinion was competent, credible and probative, and an addendum opinion was not necessary. See 38 C.F.R. § 3.304(c); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board notes in response to VA requests for an addendum opinion, the examiner changed her opinion in September 2020 and opined that the Veteran did not have a current active respiratory diagnosis that was caused or due to service. However, based upon the Board’s finding that the initial October 2019 VA opinion was competent, credible and probative, the September 2020 addendum opinion from the examiner cannot be afforded greater probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). But see July 2006 VA examination. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014).   Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for a respiratory disability to include recurrent pneumonia and bronchitis is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Johnson 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.