Citation Nr: 21041962 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-58 607A DATE: July 10, 2021 ORDER Entitlement to service connection for a cervical spine condition is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran's cervical spine condition is related to his in-service injury. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine condition have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1966 to November 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision. The Board notes the Veteran withdrew his hearing request in April 2021 correspondence. Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for a cervical spine condition. Private treatment records show the Veteran has a current diagnosis of cervical spine arthritis. Service treatment records show no complaints, treatment, or diagnosis of any cervical spine or neck condition. However, the Veteran has stated in multiple correspondence, that he injured his cervical spine in service. See June 2015 correspondence; November 2015 correspondence; May 2017 correspondence. The Veteran contends the injury occurred in June 1967 while serving in Vietnam when the driver of the truck he was riding in crashed into a large tree stump. He said they did not have seatbelts, and he was thrown forward and hit his head on the windshield frame. He continued to explain that a medic determined he would be fine and did not report the injury, and that he had neck pain for days after the injury. The Board finds the Veteran's lay statements regarding his in-service injury competent and credible. Additionally, the Veteran submitted a private medical opinion from Dr. D.L. in September 2015. The doctor stated the Veteran's current cervical spine arthritis "is consistent with a severe neck injury he received while in military service in 1967." He noted the Veteran was involved in a truck accident with a prolonged period of neck pain, and has "no history of other trauma or precipitating cause of arthritis in the cervical spine." There is no other opinion to the contrary. The Board gives the September 2015 private opinion significant weight, and finds the weight of the evidence supports a finding that the Veteran's cervical spine disability is related to his in-service injury. Accordingly, entitlement to service connection for a cervical spine condition is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A VA examiner must consider the Veteran's lay statements regarding the incurrence of a disorder, and his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40. A Veteran is competent to report symptoms that are capable of lay witness observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran was afforded a VA examination for his bilateral hearing loss in September 2015. The examiner diagnosed the Veteran with sensorineural hearing loss (in the frequency range of 500-4000 Hz), however she opined his hearing loss was less likely than not related to service, to include military noise exposure. She explained that the Veteran had normal hearing sensitivity on his entrance and separation exam, with no significant threshold shifts. The examiner also noted the Veteran's MOS as a truckmaster, his moderate probability of hazardous noise exposure, and his reports of military noise exposure due to heavy trucks and artillery, delivering munitions to fire bases. However, she did not discuss this in her rationale or address all the Veteran's detailed lay statements. In November 2016 correspondence, the Veteran reported multiple incidents of noise exposure during service, to include a June 1967 incident where he drove for 32 hours straight and his exhaust manifold started leaking causing "a deafening roar" for about 100 miles, a December 1967 incident where grenades exploded and a Quad Fifty Gun Truck fired near him, and multiple deliveries to artillery companies while they were firing, where he would be there for hours without hearing protection. As such, a remand is necessary to afford the Veteran an addendum opinion that properly addresses his lay statements. The matters are REMANDED for the following action: 1. Obtain all VA treatment records not currently associated with the claims file. 2. Obtain an addendum opinion for the Veteran's bilateral hearing loss. The entire file should be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury, to include his MOS as a truckmaster and his complaints of noise exposure during service. For purposes of this opinion, pursuant to VA protocols the in-service entrance examination and separation examination audiometric results should be converted from the ASA standard to the ISO-ANSI standard. The examiner must also consider and address the Veteran's lay statements from his November 2016 correspondence regarding incidents of in-service noise exposure, to include a June 1967 incident where he drove for 32 hours straight and his exhaust manifold started leaking causing "a deafening roar" for about 100 miles, a December 1967 incident where grenades exploded and a Quad Fifty Gun Truck fired near him, and multiple deliveries to artillery companies while they were firing, where he would be there for hours without hearing protection. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.