Citation Nr: 21006314 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 10-41 551 DATE: February 3, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for memory loss due to service-connected traumatic brain injury (TBI) is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. A chronic cervical spine disability was not shown in service, cervical spine arthritis was not diagnosed within one year of service discharge, and the weight of the evidence fails to establish that the Veteran’s current cervical spine disorder is etiologically related to his active service. 2. Bilateral hearing loss was not shown in service or diagnosed within one year of service discharge, and the weight of the evidence fails to establish that the Veteran’s current disability is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to December 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affair (VA) Regional Office (BO) in Detroit, Michigan. The Veteran presented testimony at a video conference hearing before a Veterans Law Judge (VLJ) in August 2011. A transcript of that hearing is of record. In November 2014 and October 2016, the Veteran was notified that the VLJ who conducted his August 2011 hearing was unavailable to participate in the decision on his appeal and offered the opportunity to present testimony at another hearing. In October 2016, the Veteran expressed his desire for another hearing. Accordingly, in March 2017, the Veteran presented testimony at a videoconference hearing before the undersigned VLJ. The transcript of that hearing is associated with the claims file. In December 2013, November 2016, and July 2019, the Board remanded the case for further development, which has been completed and the case has been returned for appellate review. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis and hearing loss. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Entitlement to service connection for a cervical spine disability. The Veteran is seeking service connection for a cervical spine disability. Specifically, he testified at the March 2017 Board hearing that he injured his neck when he fell off a rope in boot comp. After considering the totality of the evidence of record, the Board concludes that service connection is not warranted for a cervical spine disability. The medical evidence shows a current diagnosis of degenerative disc disease of the cervical spine. However, the Veteran’s current cervical spine disability manifested many years after service and have not been shown to be related to service. The Veteran’s December 1975 service separation examination report reflects that on clinical evaluation of the Veteran’s neck was normal. Post-service, the first evidence of record noting the Veteran’s cervical spine condition is dated October 2002, when he complained of neck and shoulder pain. He reported a history of multiple gunshot wound to the right arm, both shoulders, chest and abdomen in 1993. He complained of severe pain in the right side of the neck, trunk, right shoulder and arm. On examination, there was some limitation of neck movement. However, x-ray of the cervical spine in November 2002 was negative and revealed no evidence of abnormality. Thereafter, the Veteran was seen for provisional diagnosis of cervical radiculopathy in December 2008. It was noted he was involved in motor vehicle accidents (MVAs) in April 2007 and September 2008 and had onset of neck and back pain secondary to the September 2008 MVA. Subsequent VA treatment records show the Veteran has continued to receive treatments for his neck pain. In connection with this claim, the Veteran was provided a VA examination in March 2018. The diagnosis was degenerative arthritis/disc disease of the cervical spine. He reported he has been having chronic neck pain for a long time. The examiner provided a negative opinion on the basis that there is no documented neck condition in the service treatment records and there are also no immediate post-military medical records documenting a neck condition. In July 2019, the Board found the March 2018 VA medical opinion was inadequate. Thus, an addendum opinion was sought in August 2019. In an August 2019 addendum, the VA examiner provided an opinion that the Veteran’s claimed cervical spine condition was not related to his miliary service, specifically to include the claimed in-service injury during bootcamp. The rationale was that the Veteran’s current neck condition, i.e. degenerative disc disease of the cervical spine, is mostly related to degenerative process and aging. The examiner initially noted there are no documented neck pain or chronic neck condition in service following in-service injury during bootcamp or in civilian medical records pertaining to his ongoing chronic neck condition until he was injured in civilian life. The examiner further noted that the Veteran worked mostly in physical jobs post service until he was injured, which was many years after his separation from service. The Board finds the August 2019 VA medical opinion persuasive in light of the clear rationale provided by the physician, based on a thorough review of the complete records. The medical evidence of record summarized above supports the August 2019 VA examiner’s finding that the Veteran’s post-service civilian injury and the natural progression of the disease caused his current cervical spine disability. None of the records, which were prepared prior to the Veteran filing his claim for VA benefits, make reference to an in-service injury or chronic neck pain since service. The Board notes that had he been experiencing neck pain since service, it would have been in his best interest to report that to his treating physicians. See Rucker v. Brown, 10 Vet. App. 67 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). As such, the probative weight of the evidence is against the Veteran’s claim for entitlement to service connection for a cervical spine disability. To the extent that the Veteran claims that his cervical spine disability is caused by the in-service injury, the Board finds that the etiology of the Veteran’s claimed disorder is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The cause of arthritis or degenerative disc disease is not a simple question that can be determined based on mere personal observation by a lay person as it is a pathological process within the body. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. The Board therefore finds that the question of whether the Veteran’s claimed injury in service caused his current cervical spine disability does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training or experience to offer a medical opinion as to the etiology of his cervical spine disability. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board also notes that the Veteran is not entitled to presumptive service connection for cervical spine disorder. The record contains no objective medical evidence of a chronic spine disorder until 2002 at the earliest. In addition, the record does not contain evidence that of any spine problems in service or a diagnosis of arthritis within one year of separation from the service. Notably, arthritis was not noted until 2018. Therefore, presumptive service connection is not warranted. As such, the Board finds that a preponderance of the evidence is against the claim for service connection for a cervical spine disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a “disability” when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral hearing loss. The medical evidence of record shows a current diagnosis of bilateral hearing loss disability meeting the requirements set forth in 38 C.F.R. § 3.385. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Specifically, a January 2019 VA audiological evaluation report revealed that relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 25 35 LEFT 20 25 25 30 45 Speech audiometry revealed speech recognition ability of 76 percent, bilaterally, using Maryland CNC word list. The Veteran contends that his hearing loss is due to acoustic trauma on the rifle range during service despite his military occupation specialty (MOS) was Cook. The Veteran’s lay testimony regarding his military noise exposure is competent and credible evidence. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Further, the Board has no reason to question the credibility of the Veteran’s contentions regarding his noise exposure while training on the rifle range. Nevertheless, there is no indication that such exposure resulted in any injury. In this case, the Veteran’s service treatment records show no complaints of or diagnosis of hearing loss. Notably, regarding the etiology of the Veteran’s bilateral hearing loss, a VA audiologist provided an opinion in August 2019 that the Veteran’s current hearing loss is not at least as likely as not related to the noise exposure in service. In reaching this conclusion, the examiner noted the Veteran’s MOS was cook for 11 months and this primary specialty has a low probability to hazardous noise level. The examiner further noted the Veteran denied experiencing any symptoms of tinnitus on November 2018 VA examination. Furthermore, the Veteran’s October 2014 VA audiological examination, which was conducted 39 years after separation from service, revealed essentially normal pure tone thresholds through 4000 Hz, bilaterally, except a mild loss at 4000 Hz in the left ear. In this regard, the examiner noted that the Institute of Medicine (2006) reported based on current understanding of auditory physiology, that hearing loss from noise injuries occurs immediately following exposure. The Institute of Medicine stated there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. The examiner therefore concluded that while the Veteran’s in-service examination is not fatal to his claim, when considering all evidence detailed above, including his lay statements, it is less than likely that the Veteran’s current hearing loss is etiologically related to his period of active military service, to include his claimed military noise exposure on the rifle range. The Board notes that the conclusion of the VA examiner is based on a thorough review of the Veteran’s claims file, and clinical examination of the Veteran, and consideration of the Veteran’s reported history, and is consistent with the other evidence of record. The examiner considered the Veteran’s reported history of military and post-military noise exposure. The VA examinations report indicated that the claims file was reviewed. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion). For these reasons, the Board attaches significant probative value to the August 2019 VA examiner’s opinion. There is no controverting medical opinion of record. To the extent that the Veteran contends that his bilateral hearing loss is related to military service, his statements are not competent evidence to establish medical etiology in this case. In certain instances, lay testimony may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while military noise exposure is not disputed in this case, the question of whether the Veteran’s current bilateral hearing loss was caused by his in-service noise exposure or by some other causes does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge in the field of audiology. Although the Board considered the lay testimony of record attesting to the noise exposure in service, a diagnosis of hearing loss is based on objective audiometric testing. Lay testimony cannot definitively establish the actual decibel loss at a given range and therefore cannot be used to state a specific decibel level of hearing loss. It is not shown that the Veteran is otherwise qualified through specialized education, training or experience to offer a medical etiological opinion. Furthermore, substantial probative weight is given to the opinion of the VA examiner who specialized in the field of audiology. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). The most probative evidence of record shows that the Veteran’s current bilateral hearing loss is not at least likely than not caused by military noise exposure, and the Board may not accept unsupported lay speculation with regard to medical issues. Additionally, the evidence of record does not support a finding that the Veteran’s sensorineural hearing loss manifested to a compensable degree within one year following his military separation. As such, hearing loss may not be presumed to have been incurred in service as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran’s claims. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.012; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for memory loss due to service-connected TBI is remanded. In July 2019, the Board remanded this issue to obtain a medical opinion addressing whether memory loss was chronically aggravated by the Veteran’s service-connected TBI, as claimed by the Veteran. In particular, the Board pointed out that the United States Court of Appeals for Veterans Claims (the Court)’s recent holding that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). In August 2019, a VA examiner opined that the Veteran’s memory loss has been progressive over the years and due to the drugs and alcohol which are medically known to cause a progressive memory loss as the Veteran has. The examiner stated there was also clear evidence that the Veteran was able to attend cooking school in service after the mild TBI thus indicating that he had normal cognitive functions after his mild TBI. The examiner added that per review the Veteran’s reported history dated October 2014 on the VA examination done by the same examiner, there were no sequelae post TBI. However, this medical opinion still does not address the issue of aggravation. As such was not accomplished, there has not been substantial compliance with its July 2019 remand, and remand is once again necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 2. Entitlement to service connection for PTSD is remanded. 3. Entitlement to service connection for an acquired psychiatric disability is remanded. In July 2019, the Board found that the VA medical opinions obtained in October 2014 and November 2018 were not adequate. The VA examiners merely reiterated that the Veteran did not meet the full criteria for PTSD and provided an opinion that his depressive disorder, unspecified, was related to multiple gunshots that occurred in 1993. The Board found this opinion was not sufficient because no explanation was provided as to why the Veteran’s current psychiatric disorder was related to his post-service gunshot incident. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Unfortunately, this continues to be the case. In September 2019, the examiner rendered a diagnosis of depressive disorder, unspecified, and again repeated the opinion that “[b]ased on the review of medical records and history provided by Veteran, his depressive disorder is at least likely as not secondary to his traumatic experience with police in 1993.” However, the VA examiner, once again, only provided a bare conclusion in support of this opinion and it lacks probative value. Consequently, the examination is not in compliance with the Board remand directive. See Stegall, 11 Vet. App. at 271; D’Aries, 22 Vet. App. at 105. Thus, a new addendum opinion is required. 4. Entitlement to service connection for tinnitus is remanded. The Board observes that no Supplemental Statement of the Case (SSOC) addressing the claim of service connection for tinnitus on the appeal has been issued. See Bernard v. Brown, 4 Vet. App. 384 (1993). As such, there has not been substantial compliance with its July 2019 remand, and remand is once again necessary. See Stegall, 11 Vet. App. at 271; D’Aries, 22 Vet. App. at 105. The matters are REMANDED for the following actions: 1. Obtain any updated VA treatment records dated from February 2020 to the present and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. 2. Forward the Veteran’s claims file to an examiner with the appropriate expertise to obtain a supplemental opinion for memory loss due to TBI. Schedule the Veteran for a new VA examination if appropriate. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide opinions (a) as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s memory loss is proximately due to his service-connected TBI, or (b) as to the whether the Veteran’s memory loss is aggravated by his service-connected TBI. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be “permanent” worsening of the nonservice connected disability. The examiner must provide separate findings and rationales relating to causation and aggravation. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. 3. Thereafter, obtain an addendum opinion with regard to the etiology of the Veteran’s psychiatric disorders from a VA examiner with the appropriate expertise, other than the September 2019 VA examiner. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a complete review of the claims file, the examiner is asked to provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s currently diagnosed acquired psychiatric disorder was incurred in or is otherwise etiologically related to service, specifically to include the personal assault incident in service. A complete explanation must be given for any opinion expressed, and provide a factually accurate, fully articulated, and soundly reasoned rationale for the opinion, citing to examination findings or other evidence in the record to support the conclusions. 4. After undertaking any other development deemed appropriate, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative with an SSOC and afford them an opportunity to respond before the record is returned to the Board for further review. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.