Citation Nr: A21019161 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 191107-46137 DATE: December 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for degenerative arthritis of the lumbar spine and lumbosacral strain (lumbar spine disability) is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) with alcohol abuse disorder is granted. REMANDED Entitlement to service connection for right facial Bell's Palsy is remanded. Entitlement to service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. The Veteran has a bilateral hearing loss disability related to noise exposure during active service. 2. The Veteran has a lumbar spine disability related to active service. 3. The Veteran has established a diagnosis of PTSD with alcohol abuse disorder based upon credible in-service stressors. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for entitlement to service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for PTSD with alcohol abuse disorder are met. 38 U.S.C. §§ 105, 1110, 1131, 5107 (2020); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to November 1971, March 1973 to April 1980, and September 2004 to February 2005, to include service in Afghanistan. These matters come before the Board of Veterans' Appeals (Board) on appeal from July and August 2019 rating decisions by a Department of Veterans Affairs (VA) regional office. In the November 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. A hearing was held before the undersigned Veterans Law Judge in June 2021. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hearing loss. The Veteran asserts that he has bilateral hearing loss related to his active service. During his June 2021 hearing, the Veteran testified that he served in the artillery during his first period of active-duty service. He reported that, while he was provided with ear protection, no one used it at the time. While the Veteran's hearing was noted to be normal during service, as his service in the artillery is consistent with a high risk of harmful noise exposure, an in-service event is established. With respect to a current hearing loss disability, 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 500, 1000, 2000, 3000, 4000 Hertz (specified frequencies) is 40 decibels or greater; when the auditory thresholds for at least three of the above 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. When the Veteran underwent VA examination in connection with this claim in June 2019, auditory testing revealed thresholds at the relevant frequencies of 15, 10, 20, 15, and 25 decibels in the right ear, and 15, 10, 15, 20, and 35 decibels in the left ear. Maryland CNC speech recognition scores were 100 percent in the right ear and 94 percent in the left ear. As a hearing loss disability for VA purposes was not established, the examiner opined that the Veteran did not have a hearing loss related to military noise exposure or acoustic trauma. The Veteran submitted a private audiogram conducted in June 2021 which showed a current hearing loss disability for VA purposes. August 2021 Medical Treatment Record Non-Government Facility. As the current disability requirement for service connection may be satisfied by a showing of a disability at any point during the pendency of the appeal, the remaining question for resolution is whether such disability is related to harmful noise exposure in service. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran submitted a July 2021 private opinion along with the audiogram. The physician, Dr. T.G., noted that loud noise exposure is known to cause hearing loss, whether from a single, loud blast or from repeated and prolonged exposure to certain noises, and that loud noise is particularly harmful to the inner ear. Dr. T.G. further reported that loud noise causes damage to the cells and membranes of the inner ear and can cause these cells to die. Dr. T.G. indicated that these harmful effects can continue to progress even after noise exposure has stopped, and that this type of damage is generally permanent. The physician also noted that noise exposure can damage the auditory nerve, and that this type of damage may not show up on a hearing test early on, but can instead create a "hidden hearing loss" that can make it difficult for patients to understand speech in noisy places. Given the above, Dr J.G. opined that the Veteran's hearing loss is at least as likely as not due to repeated noise exposure that he experienced while in service. Upon review, the Board finds the July 2021 private opinion to be highly probative, in that it is based on a review of the Veteran's medical history and provides a thorough basis for the opinion stated. As it is the only medical opinion of record following the establishment of a hearing loss disability, the Board finds the Veteran's hearing loss is related to his active service. Accordingly, service connection is warranted, and the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a low back disability. The Veteran contends that he has a current low back disability related to service. During the June 2021 hearing, he testified that he believed his back pain to be caused by hard work and heavy lifting in service. Upon review, the Board finds that the Veteran's lumbosacral strain and degenerative joint disease are related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). The record reflects diagnoses of degenerative arthritis of the spine and lumbosacral strain. June 2019 C&P Exam, August 2021 VA Examination. During service, the Veteran was seen on several occasions for complaints of back pain. June 2019 STR Medical. Thus, the question becomes whether the current disability is related to service. On this question there are opinions in favor of and against the claim. The evidence against the claim includes a June 2019 VA medical opinion. In that regard, when the Veteran underwent VA examination the examiner diagnosed degenerative arthritis of the spine and slight levoscoliosis of L3. The examiner noted the Veteran's reports of lifting heavy equipment during service and that he was treated with pain medication, bedrest, and light duty. Ultimately, the examiner opined that the Veteran's low back condition was less likely than not related to service, relying primarily on a lack of documented treatment in the record. As this is not a sufficient rationale, the Board finds this opinion should be afforded very little probative weight. The evidence in favor of the claim includes a July 2021 private opinion from Dr. T.G. August 2021 Medical Treatment Record Non-Government Facility. Dr. T.G. diagnosed degenerative arthritis and lumbosacral strain and noted the Veteran's in-service complaints. The physician also reviewed the Veteran's reports that his duties required the lifting and moving of heavy artillery and ammunition and riding through rough terrain on self-propelled Howitzers. Dr. T.G. explained that lumbosacral strain can be caused by a singular injury or repeated trauma, and that trauma causing damaging microtears in the structures of the back, including muscles, tendons, ligaments, and bones. Further, Dr. T.G. indicated that when the body tries to repair these microtears, it lays down fibrous tissue which can cause chronic pain, limited range of motion, and even neurological problems. With respect to degenerative arthritis, Dr. T.G. reported that it can be caused by repetitive trauma from heavy lifting, pushing, pulling, carrying, and running, because cartilage breakdown releases inflammatory markers into the joints, further aggravating the degenerative process. In light of the above, Dr. T.G. opined that the Veteran's duties in service caused lumbosacral strain and the repeated trauma led to the development of degenerative arthritis. Upon review, the Board finds Dr. T.G.'s opinion to be well-reasoned and supported by the record. Accordingly, the most probative evidence weighs in favor of a finding that the Veteran's current low back disability is related to service. After resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for PTSD with alcohol abuse disorder. The Veteran asserts that he has PTSD related to in-service stressors, including visiting injured soldiers and touring morgues in Afghanistan, as well as hiding while taking incoming fire on the forward operating base. June 2021 Hearing Transcript; August 2021 VA Examination. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). When a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, provided it is consistent with the circumstances of the veteran's service. 38 C.F.R. § 3.304(f)(3). Additionally, while service connection for a drug or alcohol abuse disorder may not be granted on a direct basis, service connection be awarded if such disorders are acquired as secondary to, or as a symptom of, another service-connected disability. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301; Allen v. Principi, 237 F.3d. 1368 (Fed. Cir. 2001). The Veteran underwent VA examination in connection with this claim in June 2019. The examiner found that the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD, or any other acquired psychiatric disorder, pursuant to the DSM-5. June 2019 C&P Exam. In that regard, the examiner acknowledged the Veteran's reports of symptoms including nightmares and depression, but did not explain why these symptoms did not meet certain diagnostic criteria for PTSD, including recurrent distressing dreams, sleep disturbance, persistent negative emotional state, or persistent inability to experience positive emotions. Id. Further, in reaching the conclusion that the Veteran's symptoms did not meet the criteria for a diagnosis of any acquired psychiatric disorder, the examiner did not provide sufficient rationale, relying instead on a lack of documentation of mental health problems or treatment. Id. As the VA examiner's findings are conclusory in nature and do not fully address the Veteran's complaints, the Board finds the VA opinion should be afforded very little probative value. In July 2021, the Veteran underwent a private examination by a psychologist, Dr. J.C., who also serves as a VA contract examiner. August 2021 VA Examination. Preliminarily, following a thorough review of the Veteran's symptoms and history, Dr. J.C. found that the Veteran did meet the criteria for a diagnosis of PTSD with alcohol abuse disorder. Id. Dr. J.C. indicated that alcohol abuse disorder was secondary to PTSD. With respect to stressors, the Veteran asserted that, when he was deployed to Afghanistan, his job duties as a senior enlisted advisor required him to visit enlisted soldiers in the hospital and to visit the morgue. Further, he reported that the forward operating base took incoming fire while he was there, and he had to run to a bunker. Id. Dr. J.C. found that the Veteran's claimed stressors were related to his fear of hostile military or terrorist activity and were adequate to support a diagnosis of PTSD. Id. The Board finds these stressors to be consistent with the circumstances of the Veteran's service, as service personnel records reflect he served in Afghanistan as a Group Superintendent and Emergency Management Representative. May 2019 DPRIS Response. Accordingly, as Dr. J.C. is employed as a VA contract examiner, albeit not in this case, and the stressors are consistent with the Veteran's service, the Board finds the Veteran's credible lay testimony as to his stressors is sufficient to establish their occurrence. 38 C.F.R. § 3.304(f)(3). As the evidence establishes a diagnosis of PTSD with secondary alcohol abuse disorder, in-service stressors, and a link between the two, the Board finds service connection is warranted. Accordingly, the claim for entitlement to service connection for PTSD with alcohol abuse disorder is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for right facial Bell's Palsy is remanded. The Veteran asserts that he continues to experience residuals of right facial Bell's Palsy, which he experienced on at least two occasions during active service. He was afforded a VA examination in connection with this claim in June 2019, at which time he reported occasional difficulty swallowing with increased salivation at times. While the examiner noted "mild trouble swallowing" in the section designated for symptoms attributable to a condition affecting the cranial nerves, the examiner went on to say that there was no current cranial nerve involvement upon examination. These findings render the examination internally inconsistent, and the failure to request clarification constitutes a predecisional error in the duty to assist. Accordingly, remand is necessary so that a new VA opinion may be obtained. 2. Entitlement to service connection for a cervical spine disability is remanded. The Veteran asserts that he has a cervical spine disability related to service. While he was afforded a VA examination in June 2019, an etiological opinion was not provided beyond stating that the Veteran's claims file was silent for a diagnosed cervical condition. The Veteran reported that he began having neck pain while lifting heavy equipment in 1970 and that the pain continued throughout his military career and has not improved. The Veteran's regular VA treatment records indicate that the Veteran had a current diagnosis of cervical degenerative disc disease when he established care in 2009. The examiner asserted without foundation that a cervical spine fusion was incidental and unrelated ot the Veteran's claimed neck condition. It appears that the examiner attempted to provide an opinion that the Veteran's current neck disability was unrelated to service and disregarded the Veteran's statements regarding his neck pain entirely and relied on the absence of in-service treatment records. This renders the opinion inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). The failure to obtain an adequate opinion was a predecisional failure in the duty to assist. Accordingly, remand is necessary so that a new VA opinion may be obtained. The matters are REMANDED for the following actions: 1. Send the claims file to an appropriate examiner who has not yet provided an opinion on this matter to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has current residuals of right facial Bell's Palsy, to include difficulty swallowing, which had onset in or are otherwise related to service, to include the in-service episodes of Bell's Palsy. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 2. Send the claims file to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current cervical spine disability had onset during service or is otherwise related to an in-service injury, event, or disease. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. D. Bruce, 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.