Citation Nr: 21071774 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-27 742 DATE: December 1, 2021 REMANDED Entitlement to a compensable initial rating for bilateral hearing loss disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a back disability, including as secondary to the cervical spine disability, is remanded. REASONS FOR REMAND The Veteran had active military service from September 1984 to March 1988. He testified in support of these claims during a July 2021 "virtual" teleconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. After the hearing, the Veteran was given an additional 30 days, and then an additional extension until November 2021, to submit more evidence and/or argument in support of his claims, and that grace period since has expired. 1. Entitlement to a compensable initial rating for bilateral hearing loss disability is remanded. The Veteran's hearing acuity was most recently evaluated in July 2017, so more than 4 years ago. He testified during his July 2021 hearing before this Board that he believes his hearing has worsened appreciably since that July 2017 examination. He is competent to report difficulty hearing and his perception that it has worsened. Thus, he needs to be reexamined to reassess the severity of this service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to service connection for cervical spine disability is remanded. The Veteran has received a diagnosis of cervical disc degeneration (see January 2019 private record) and cervical spine stenosis and disc bulges (see November 2020 Health Village Imaging record). In August 2021, Dr. T. Schachter opined that the Veteran's cervical spine disabilities were at least as likely as not incurred during his service from a physical assault and when he fell backwards over a telephone cord. Dr. Schachter's rationale was that there are multiple avenues of pathology for osteoarthritis including age and acute joint injuries, and that acute direct trauma frequently leads to a progressive onset of arthritis. However, the opinion is somewhat undermined since it fails to discuss the lack of complaints in service, the onset of complaints many years after service, and the Veteran's post-service trauma and occupation. That said, while this opinion is insufficient reason to grant this claim, it does nonetheless meet the "low" threshold requiring VA to obtain a medical opinion concerning the origin of this claimed disability particularly insofar as whether related or attributable to the Veteran's military service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's service treatment records (STRs) reflect that, in March 1986, he was involved in an altercation and fell through a glass window. This March 1986 STR shows he sustained several lacerations, but it is unremarkable for any complaints referable to his cervical joints or spine. He had a smell of liquor. He was released from the hospital less than two hours after arrival with sutures and referred to an alcohol and drug abuse program (ADAPCP). An undated STR when the Veteran was 21 years old (so likely in 1986) reflects that he had a scalp laceration from a standing fall to the floor when he struck his head on concrete. He denied cervical spine and back pain. Upon examination, he had no neck pain on palpation. He had a smell of liquor on his breath, and he admitted to having had "many" beers and hard liquor. An August 1986 STR indicates the Veteran had fallen backwards after tripping over a telephone cord and hit his head against the corner of a wall. It was specifically noted that there was no complaint of neck or back pain. Upon examination, his back and neck were both nontender to palpation. His alcohol level was 222. The Veteran separated from service in March 1988. More than a decade later, the Veteran was suspected of having fibromyositis type syndrome or fibromyalgia. A March 2003 record from Dr. P. Hollander is missing the first page as to why the Veteran was treated in the emergency room at some point. It may be useful for the Board to have this page associated with the claims file. This March 2003 record, however, does note that, in January 2003, the Veteran "may" have been punched in the head by his brother-in-law and diagnosed with trauma to the right orbit and a contusion. Dr. Hollander noted that the Veteran may or may not have fibromyositis because all the blood work did not document any other inflammatory arthritis. A July 2003 record from Dr. Sharetts (Brait, Partnow, Margolin & Sharetts) shows the Veteran had numerous situational fractures and "numerous situational concussions." It was noted that most of his injuries had occurred while working for B. Bridge commission. Workers Compensation records, if any, may be useful to the Board, especially if they note complaints prior to any work-related injuries; thus, VA should attempt to obtain them. It was also noted that he was involved in several motor vehicle accidents and a motorcycle accident; these medical records also may be useful to the Board. Moreover, as Dr. Schachter has stated that arthritis may result from acute trauma, it may be helpful to have a more complete record concerning the Veteran's post-service injuries. For example, a February 2018 VA record reflects that he has reported sustaining head trauma and "multiple concussions from sports, fights, and [motor vehicle accident]". Records reflect that he had prior employment as a carpenter and engineer (see August 2003 private record) and "years of working in construction (see January 2005 record). Dr. Schacter did not discuss or reconcile how the Veteran's civilian employment may or may not be related to his current diagnoses. A January 2011 private record shows the Veteran moved his neck while watching television and resultantly had pain in it. A June 2014 private record indicates he has myalgia and myositis with a "new component with cervical spine." A May 2016 private record notes that he may have cervical strain syndrome. A January 2019 private record notes cervical disc degeneration, and a November 2020 private record (Health Village Imaging) lists cervical spine stenosis and disc bulges. Records show the Veteran is in receipt of Social Security Administration (SSA) disability benefits; thus, VA should attempt to obtain these records since also potentially relevant to this appeal. Also, when providing the supplemental medical comment that is being requested, the examiner should consider the above evidence if pertinent. The Veteran testified during his July 2021 hearing before this Board that, when he fell out the window, he "wound up almost breaking" his neck and he thought he was going to be "decapitated", and that he was bleeding so badly from cuts that he thought he was going to "bleed out". He conceded that he had been drinking earlier and was having a "nightcap" at the time of the incident, but that alcohol was "not really" a factor. He reported being driven to the hospital by a friend, that the police "filed their procedure and all", and that he has current back and neck pain because of that incident. However, as the question has been raised of whether there was willful misconduct, which is a bar to receiving VA compensation and other benefits (see February 2016 rating decision of the local Regional Office (RO) and March 2018 Statement of the Case (SOC)), the Board finds that military police records may be useful to the Board in making this determination, so VA should attempt to obtain them. 3. Entitlement to service connection for a back disability, including as secondary to the cervical spine disability, is remanded. The Veteran also has received diagnoses of lumbar discogenic disease (see December 2013 private record) and intervertebral disc degeneration of the lumbar region (see January 2019 private record). His January 2003 initial VA visit confirms he had back pain precipitating these diagnoses. In August 2021, Dr. Schachter opined that the Veteran's lumbar spine disability "may" be attributable to an injury in service "as the trauma to the cervical spine also affects the lumbar spine", and that, given the lack of an independent injury to the lumbar spine, it is at least as likely as not caused by the cervical spine arthritis. However, Dr. Schacter also conceded that arthritis has multiple avenues of pathology including age and acute joint trauma, and he failed to address or reconcile why age is not a more likely factor in the Veteran's disability or his employment and activities since service. The Veteran's STRs note only one complaint referable to his back, in June 1985, when he was seen for athlete's foot, a muscle spasm, and pain in his back that morning while showering. Dr. Schachter did not opine that the current disability is in anyway related to that incident but focused instead on the March 1986 incident and notion of secondary service connection, so the premise the cervical spine disability caused or aggravates the low back disability. Thus, these claims are "inextricably intertwined", in turn meaning the Board must temporarily defer considering this back claim until completing the additional development being directed concerning the claim for a cervical spine disability. Accordingly, these claims are REMANDED for the following action: 1. Obtain the Veteran's SSA records, including all medical treatment records considered in this other Federal agency's determination. 2. Ask the Veteran to complete a VA Form 21-4142, Authorization and Consent to Release Information, for all Workers Compensation records and medical records from his employment at B.B. Commission. 3. Ask the Veteran to complete a VA Form 21-4142 for medical treatment records from all motor vehicle accident and/or concussions or head injuries (to include when punched by his relative in 2003). 4. Contact the appropriate repository for military law enforcement records and attempt to obtain all military police records, including blotter reports, listing the Veteran as a subject or victim between March 1 and March 2, 1986 at Fort Lewis (now Joint Base Lewis-McChord) with treatment at Madigan Army Medical Center (MAMC). 5. After obtaining all additional records relevant to these claims, obtain a clinical opinion concerning whether it is as likely as not (50 percent or greater probability) the Veteran has a cervical spine disability owing to any disease, injury, or event during his service. The evaluating clinician should consider the pertinent evidence of record, including: a) the diagnosis of cervical disc degeneration, stenosis, and disc bulges (see January 2019 and November 2020 private records); b) the August 2021 opinion of Dr. T. Schachter; c) a March 1986 STR noting several lacerations; d) an undated STR when the Veteran was 21 years old (so likely in 1986) indicating he had struck his head on concrete; he denied cervical spine pain, and none was noted on palpation; e) an August 1986 STR indicating he had fallen backwards after tripping over a telephone cord and hit his head; it was noted that there was no complaint of neck or back pain, and these areas were nontender to palpation; f) his post-service diagnosis of fibromyalgia in approximately 2003; g) the evidence of post-service head trauma (see March 2003 record from Dr. Hollander and July 2003 record by Dr. Sharetts); h) a January 2011 private record indicating the Veteran had moved his neck while watching television and consequently had pain in it; i) a June 2014 private record noting a "new component with cervical spine"; j) a May 2016 private record noting he may have cervical strain syndrome; k) his age upon diagnosis of degenerative disease; and l) his post-service employment (construction, engineering, carpentry), if relevant. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. 6. Thereafter, if the clinician finds it is as likely as not the Veteran has a cervical spine disability because of his military service, obtain an additional clinical opinion concerning whether it also is as likely as not he has a lumbar spine disability that was caused or is aggravated by the cervical spine disability. If the examiner finds it is as likely as not (50 percent or greater probability) the cervical spine disability worsens the lumbar disability, the examiner should state, if reasonably feasible, the degree of worsening (i.e., the baseline of the disability before aggravation in comparison to the degree of severity after aggravation.) 7. As well, schedule the Veteran for an examination by an appropriate clinician to reassess the severity of his service-connected bilateral hearing loss. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.