Citation Nr: 21061889 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-40 102A DATE: October 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for cervical spondylolysis, cervical degenerative disc disease, and cervicalgia (cervical spine disability) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss is related to in-service acoustic trauma. 2. The evidence is at least evenly balanced as to whether the Veteran's cervical spine disability is related to an in-service injury. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for cervical spine disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to March 1979. This case comes before the Board of Veterans' Appeals (Board) from May 2014 and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a neck condition and bilateral hearing loss. In July 2015 the Veteran filed a notice of disagreement (NOD) and in July 2017 the RO issued a statement of the case (SOC). In August 2017, the Veteran filed a substantive appeal (via VA Form 9). In February 2020, the Board remanded these matters for further evidentiary development, specifically, to obtain outstanding VA treatment records and to afford the Veteran a VA examination to determine the etiology of his neck condition and bilateral hearing loss. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a 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 service 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. Bilateral hearing loss Hearing loss disability is defined for VA compensation purposes using audiologic testing involving pure-tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by 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, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. On the March 2020 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 45 40 55 LEFT 25 30 40 40 55 Maryland CNC speech recognition scores were 78 percent in the right ear and 56 percent in the left ear. Therefore, the evidence of record establishes that the Veteran currently has bilateral hearing loss under VA regulations. 38 C.F.R. § 3.385. Thus, a current disability has been demonstrated. The Veteran's service treatment records (STRs) reveal that he was exposed to noise from firings of a personal weapon and field artillery weapons. A December 1978 STR indicates that the Veteran experienced a left earache. Further, the Veteran's military occupational specialty was a food service specialist which would expose him to a moderate amount of hazardous noise. Taken together, the Veteran's claimed noise exposure is consistent with the places, types, and circumstances of service, and in-service noise exposure is established. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The remaining question is whether a nexus exists between the Veteran's current bilateral hearing loss and his in-service acoustic trauma. In a February 2020 letter, a private physician opined that the Veteran's bilateral hearing loss is at least as likely as not related to noise exposure he experienced during his military service. The private physician explained that loud noise exposure is cumulative and may affect individuals many years after the exposure. Although the private physician's rationale was not extensive, reading the opinion as a whole and in the context of the evidence of record, it is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). A March 2020 VA audiologist opined that the Veteran's bilateral hearing loss is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA audiologist explained that there was no indication of acoustic trauma in the Veteran's STRs. Although the VA audiologist rendered the opinion that the Veteran's current bilateral hearing loss is not related to service, such an opinion is of little probative value, as it was based on the absence of in-service evidence of bilateral hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability); 38 C.F.R. § 3.303(d) (service connection is warranted in some circumstances for a disease first diagnosed after service). Furthermore, the same VA audiologist provided a positive nexus opinion as to the Veteran's tinnitus and acknowledged he was exposed to hazardous noise while on active duty. Thus, the March 2020 VA medical opinion is afforded no probative value. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss is related to his in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Cervical spine disability A May 2015 private physician diagnosed the Veteran with cervical spondylolysis. An October 2019 private physician diagnosed the Veteran with cervicalgia. A March 2020 VA examiner diagnosed the Veteran with cervical degenerative disc disease. Thus, a current cervical spine disability has been demonstrated. In an August 2015 letter, the Veteran stated that as a cook in the armed forces he was subject to a demanding schedule which included extended hours standing over and operating large industrial sized cooking equipment. The Veteran pointed to an April 1978 STR in which he complained of lower back pain after engaging in strenuous activity. The Veteran stated that although his neck pain was not noted by the physician, he experienced neck pain along with lower back pain. As noted on his DD Form 214, the Veteran was a food service specialist which is an MOS associated with physical stress. Therefore, the reported events are consistent with the places, types, and circumstances of the Veteran's service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Thus, the in-service injury requirement is met. The remaining question is whether a nexus exists between the Veteran's current cervical spine disability and his military service. A March 2020 VA examiner opined that the Veteran's cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there were no complaints of or a diagnosis for a neck condition while the Veteran was on active duty. The VA examiner's opinion is inadequate because it was based entirely on the lack of diagnosis or treatment of a neck disability while in service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Moreover, the VA examiner did not address the Veteran's complaints of back pain which was noted in his STRs. In a March 2020 letter, a private physician opined it is as likely as not that the Veteran's cervical spine disability is related to his military service. The private physician explained that if the Veteran carried heavy objects or sustained any injuries to his back or neck during service that his disability is related to his service. While the private physician relied on the service history provided by the Veteran, the discounting of a medical opinion that relied on service history provided by the Veteran is only warranted in certain circumstances, none of which are present here. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). As the private physician provided a thorough rationale based on an accurate characterization of the evidence of record, her opinion is afforded significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Based on the positive nexus opinion and inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran's current cervical spine disability is related to his military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for cervical spine disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, Associate 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.