Citation Nr: 21076284 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-06 962 DATE: December 23, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to an initial compensable rating for right ear hearing loss is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. FINDING OF FACT The most probative evidence of record establishes that the Veteran's left ear hearing loss is caused by, or related to, his active duty. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1969 to August 1973. The Veteran testified before the undersigned Veterans Law Judge at an August 2021 Board hearing. A transcript of the hearing has been associated with the claims file. Entitlement to service connection for left ear hearing loss is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). In addition, service connection for certain chronic diseases, including sensorineural hearing loss, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). Military personnel records show the Veteran's military occupational specialty was in avionics maintenance. The service treatment records (STRs) show the Veteran had a threshold shift in his left ear from the August 1969 pre-induction examination to the March 1970 audiogram and the January 1973 separation examination. On the January 2014 VA hearing loss examination, the examiner found the Veteran to have sensorineural hearing loss in the left ear. The examiner concluded that there was not a permanent positive threshold shift greater than normal in the left ear. The examiner opined that he was unable to provide an opinion regarding etiology because the Veteran's STRs were unavailable for review. At the October 2014 VA hearing loss examination, the Veteran stated that he first noticed hearing loss after separation from service. He stated that he experienced exposure to excessive noise from aircraft. On examination, the examiner indicated the Veteran has a diagnosis of sensorineural hearing loss in the left ear. The examiner found that the Veteran did not experience a permanent threshold shift in the left ear. The examiner opined that the Veteran's left ear hearing loss is less likely than not caused by service. The examiner reasoned that the Veteran's hearing thresholds were within normal limits with the exception of a mild hearing loss at 4000 Hertz at entrance. The examiner found that the Veteran's hearing thresholds were within normal limits at all test frequencies in the left ear at the separation examination in January 1973. The examiner stated that although there was decline in thresholds at several frequencies between the two examinations, the thresholds obtained at the January 2013 VA treatment and the August 1969 entrance examination results were stable. The examiner also stated that the Veteran's pre-existing hearing loss at 4000 Hertz in the left ear was not aggravated beyond normal progression military service. The examiner noted hearing at 4000 Hertz improved in the January 1973 separation examination by 15 decibels. At the August 2021 Board hearing, the Veteran testified that his primary duty during service in Okinawa was as an instrument repairman for aircrafts. Board Hearing Transcript (T.) at 2. He stated that he also worked on the flight line. T. at 3. The Veteran testified that since service in Okinawa, he has experienced hearing loss. T. at 9. The Veteran stated he continued to experience hearing loss after separation from service. T. at 8. He stated he now wears hearing aids. T. at 9. Upon review of the record, the Board finds that the most probative evidence of record establishes that the Veteran's left ear hearing loss is related to his active service. The Veteran's STRs reveal that he had normal hearing during his service for VA disability purposes. However, the Board notes that the audiometric data from the January 1973 separation examination included increased puretone thresholds in the frequency range of 1000 to 3000 Hertz. In addition, the Board has carefully reviewed the Veteran's statements of record. The Veteran stated that he was exposed to loud noise from aircraft. The Board finds that the Veteran, as a lay person, is competent to testify to having been exposed to loud noises during service and experiencing decreased hearing acuity. See Layno, 6 Vet. App. at 470. Moreover, there is no evidence to doubt his credibility. The Veteran's statements regarding his noise exposure while in service are consistent with his military personnel records. The Veteran's statements also reflect a continuity of symptomatology of hearing loss. Accordingly, the Board assigns great probative weight to the Veteran's statements regarding the inception and persistence of his hearing loss. 38 C.F.R. § 3.303(b). Although the October 2014 VA examination confirmed a current diagnosis for left ear hearing loss and preexisting hearing loss at 4000 Hertz, the examiner provided an opinion based on a legally insufficient rationale, as the examiner did not address the Veteran's in-service noise exposure and the permanent threshold shifts in the 1000 Hertz to 3000 Hertz range. The examiner stated that the Veteran's hearing was within normal range outside of the 4000 Hertz frequency. In Hensley v. Brown, the Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability merely because hearing was within normal limits on audiometric testing at separation from service. Therefore, the Board finds that the October 2014 VA opinion is inadequate with respect to the question of nexus because the examiner did not address the Veteran's threshold shift in hearing acuity from enlistment to and separation from service in the 1000 to 3000 Hertz range and the Veteran's in-service noise exposure. Accordingly, the Board assigns less probative weight to the opinion. As such, based on the most probative evidence of record, the Board finds that the Veteran's left ear hearing loss is related to his active service. Therefore, service connection for left ear hearing loss is warranted. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for right ear hearing loss is remanded. At the August 2021 Board hearing, the Veteran asserted that his right ear hearing loss warrants a higher rating. The Veteran last underwent VA examinations in January and October 2014 for his hearing loss. However, since that time the Veteran stated at the August 2021 Board hearing that his bilateral hearing loss now requires the use of hearing aids. As it has been nearly 7 years since the Veteran has been provided with VA examinations concerning the claim for increased rating and there is an assertion of worsening symptomatology, a remand is warranted to ensure that the record contains evidence of the current severity of the Veteran's service-connected right ear hearing loss. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board also notes that the Veteran has been herein awarded service connection for hearing loss of the left ear; this should be taken into consideration when conducting the examination and evaluation of his service-connected now-bilateral hearing loss. 2. Entitlement to service connection for a low back disorder is remanded. Remand is required to obtain a VA examination. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. Id.; see also 38 C.F.R. § 3.159(c)(4). On the January 1973 report of medical history, the Veteran reported that he experienced leg cramps. Here, at the August 2021 Board hearing, the Veteran testified that he fell during service and injured his back and neck. T. at 10. The Veteran's representative asserted that the Veteran's work in service required him to lift heavy objects. T. at 21. The Veteran also stated that he has experienced symptoms of the low back since separation from service. T. at 16. Therefore, the criteria for McLendon have been met. And as a result, the Board cannot make a fully informed decision on the issue of entitlement to service connection for a low back disorder because no VA examiner has opined whether the Veteran's low back disorder was caused by service. 3. Entitlement to service connection for a cervical spine disorder is remanded. Remand is required to obtain an addendum VA opinion, or a new VA examination if necessary. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is considered adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the October 2014 VA neck examiner opined that the Veteran's cervical spine disorder is less likely than not caused by service. The examiner reasoned that the STRs note acute torticollis. The examiner stated that a single episode of acute torticollis would not cause degenerative arthritis of the cervical spine. The examiner stated that the Veteran's neck disorder is more likely related to the aging process and stress on the spine over the years from activities of daily living. Here, at the August 2021 Board hearing, the Veteran testified that he fell during service. T. at 10. The Veteran's representative presented argument that the Veteran's work assignment as an aircraft technician required him to lift heavy objects. T. at 21. The Veteran stated he has experienced symptoms in the cervical spine since separation from service. T. at 16. As the October 2014 VA examiner did not consider the Veteran's statements and the report of continuity of symptomatology, the Board finds that the examiner's opinion does not offer sufficient detail for the Board to make an informed decision regarding a nexus between the Veteran's neck disorder and service. Therefore, another VA opinion is necessary. The matters are REMANDED for the following action: 1. 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 bilateral hearing loss under the rating criteria. 2. Schedule the Veteran for a VA examination for his low back disorder and cervical spine disorder. The examiner must review the claims file. The examiner must provide a diagnosis for each low back and cervical spine disorder found to be present. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a thorough, well-reasoned response to each of the following: Is it at least as likely as not that any diagnosed low back disorder began in service, within one year of service separation, or is otherwise related to service, including lifting heavy objects and a fall? Is it at least as likely as not that any diagnosed cervical spine disorder began in service, within one year of service separation, or is otherwise related to service, including lifting heavy objects and a fall? In providing each requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.