Citation Nr: 21041975 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-08 791 DATE: July 10, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for left lower extremity radiculopathy is granted. Entitlement to service connection for right lower extremity radiculopathy is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran has a lumbar spine disability that is a result of his military service. 2. Resolving reasonable doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran has radiculopathy of the right and left lower extremities that is related to his service-connected lumbar spine disability. 3. The Veteran has a current bilateral hearing loss disability for VA compensation purposes that is consistent with his in-service noise exposure. CONCLUSIONS OF LAW 1. The Veteran's lumbar spine disability was incurred during his military service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). 2. The criteria for entitlement to service connection for a right lower extremity radiculopathy disability are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 3. The criteria for entitlement to service connection for a left lower extremity radiculopathy disability are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 4. The criteria for service connection for a bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021 the Veteran testified at a virtual hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include sensorineural hearing loss may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as sensorineural hearing loss is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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 any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lumbar Spine and Radiculopathy Factual Background and Analysis The Veteran contends that his lumbar spine disability and associated lumbar radiculopathy of the bilateral lower extremities are the result of his service. At his April 2021 hearing, he testified that during his service, his back began to hurt in April 1979 due to his duty as a firefighter during his service which required doing physical training. From that moment, the Veteran contends that he had experienced back pain on a "continuous basis". The Veteran's service treatment records demonstrate multiple complaints of low back pain. Notably, in April 1979, the Veteran presented with complaints of low back pain for the past 3 weeks while a May 1979 service treatment record assessed the Veteran with a low backs strain. In July 1986 he had a follow up for complaints of low back pain and was assessed with a muscle spasm. The Veteran underwent a VA examination in August 2013. The examiner noted that the Veteran had degenerative joint disease of the thoracolumbar spine. The Veteran reported that his pain began in 1985 when he was in England on duty working at a fire station. His condition had worsened since then. An etiology opinion was not provided. In a September 2013 records review, a VA examiner opined that it was less likely than not that the Veteran's lumbar spine disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that the Veteran had been seen in service several times for back pain and after service worked as a meat cutter. His post service records were silent until 2000 when he sustained a back injury at work. In a January 2020 correspondence, a private physician noted that a review of the record demonstrated that the Veteran had back issues in his military career and that these were directly related to some of the symptoms which were now worsening. The physician noted that the symptoms of the Veteran's back had been chronic. The physician concluded that the Veteran's spinal stenosis, radiculopathy and spondylosis date back to his injuries that he sustained while on active duty as those injuries are clearly demonstrated in his chronological record of care while in the military. In a May 2021 correspondence, the Veteran's ex-wife, who is a nurse, noted that the Veteran first complained to her about back pain after he finished a shift on base in the fire department. During their marriage, the Veteran suffered from persistent pain from sciatic type symptoms. The Veteran's ex-wife indicated that the Veteran's back problems had been ongoing and debilitating since the 1970's and had never been satisfactorily treated. A. Lumbar Spine After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a lumbar spine disability is warranted. Initially, the Board notes that as there is a current diagnosis of degenerative arthritis of the lumbar spine, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). With respect to the in-service injury requirement, the Veteran again contends that during service, his back began to hurt in April 1979 due to his duty as a firefighter during his service which required doing physical training. The Veteran's service treatment records demonstrate multiple complaints of back pain. Therefore, the in-service injury element has been met. This case turns on the remaining element of service connection, which is whether the Veteran's lumbar spine disability is related to his military service. The Board notes that there are conflicting opinions as to whether the Veteran's current lumbar spine disability is related to his service. As noted above, the September 2013 VA examiner, after a records review, opined that the Veteran's lumbar spine disability was less likely than not related to the Veteran's service as the Veteran's post service records were silent until 2000 when he sustained a back injury at work. However, a January 2020 private physician opined that the Veteran's current disabilities were directly and casually related to his service as his injuries are clearly demonstrated in his chronological record of care while in the military. Additionally, in a May 2021 correspondence, the Veteran's ex-wife, a nurse, found that the Veteran's back problems had been ongoing and debilitating since the 1970's and had never been satisfactorily treated. Notably, the January 2020 private physician indicated that he reviewed the Veteran's service and post-service treatment records while he also provided a detailed history and detailed rationale for his opinions. As noted above, the physician noted that the Veteran had back issues in his military career and that these were directly related to some of the symptoms which were now worsening and that the symptoms of the Veteran's back had been chronic. The physician also specifically indicated that his positive nexus opinion was based on an assessment of the Veteran's history, along with his subjective complaints, objective findings and clinical test results. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran had a current lumbar spine disability that was caused by his service. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved reasonable doubt in favor of the Veteran, and service connection for a lumbar spine disability is granted. See 38 U.S.C. § 5107(b). B. Radiculopathy of the Lower Extremities After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for radiculopathy of the bilateral lower extremities disabilities as secondary to his now service-connected lumbar spine disability is warranted. While the September 2013 VA examiner found that the Veteran's lumbar spine disability was not a result of service, as determined above, the evidence demonstrates that the Veteran has current right and left extremity radiculopathy that was the result of his now service-connected lumbar spine disability. Notably, a January 2020 private treatment report indicated that the Veteran's spinal stenosis, radiculopathy and spondylosis date back to his injuries that he sustained while on active duty. Therefore, the January 2020 positive nexus opinion of the private physician provides the only competent medical opinion as to the relationship between the Veteran's current bilateral lower extremity radiculopathy disability and his now service-connected lumbar spine disability. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claims, and a remand would only serve to unnecessarily delay final adjudication of the claims. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a bilateral lower extremity radiculopathy disability as secondary to his service-connected lumbar spine disability is granted. See 38 U.S.C. § 5107(b). Hearing Loss For the 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Factual Background and Analysis The Veteran's service treatment records are negative for complaints of, treatment for, or findings of bilateral hearing loss or tinnitus. Audiometric testing on the Veteran's June 1978 enlistment examination revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 15 25 20 LEFT 10 10 15 25 20 Audiometric testing on an April 1984 periodic examination revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 15 25 15 LEFT 0 0 5 10 0 Audiometric testing on a January 1986 periodic examination revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 25 20 LEFT 0 0 5 15 10 Audiometric testing on a September 1986 separation examination revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 15 10 LEFT 10 10 20 20 10 The Veteran underwent a VA examination in September 2013. Audiometric testing on the Veteran's September 2013 examination revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 35 40 35 LEFT 25 15 35 40 30 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner noted that the Veteran's contention of being exposed to excessive levels of jet engine noise and heavy engine vehicle noise that he was exposed to during his military service as a firefighter. The examiner opined that it was at least as likely than not that the Veteran's bilateral hearing loss was caused by or the result of an in event in military service. The examiner noted that due to the type and duration of noise exposure the Veteran was exposed to in the military, it was at least as likely as not that the acoustic trauma from the prolonged and excessive levels of jet engine noise and heavy vehicle engine noise caused the hearing loss. In a September 2013 opinion after a records review, another VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was related to his service. The examiner noted that the Veteran had normal hearing at enlistment and separation with no significant threshold shift. Once the exposure to noise was discontinued, there was no significant further progression of hearing loss as a result of noise exposure. Although the Veteran was exposed to a significant amount of military noise exposure, it was while wearing hearing protection. The record shows that the Veteran currently has bilateral hearing loss for VA compensation purposes and a diagnosis of tinnitus. Accordingly, the first element of evidence of a current disability is accordingly met. Therefore, the question to be decided in the present appeal is whether the current bilateral hearing loss is associated with the Veteran's active duty. In this regard, the Board acknowledges that service treatment records are negative for complaints of, treatment for, or findings of hearing loss. However, when considering the circumstances of the Veteran's service, he was undoubtedly exposed to some noise in service and his in-service noise exposure has been conceded. Notably, the Veteran has also described his specific in-service noise exposure as he served as a firefighter in the Air Force where he was exposed to noise on the flight lines and from heavy machinery. The Board notes that there are conflicting opinions as to whether the Veteran's current bilateral hearing loss disability is related to his in-service noise exposure. Aa noted above, a September 5, 2013 VA examiner opined that it was at least as likely than not that the Veteran's bilateral hearing loss was caused by or the result of an in event in military service as it was at least as likely as not that the acoustic trauma from the prolonged and excessive levels of jet engine noise and heavy vehicle engine noise caused the hearing loss. However, in a September 24, 2013 opinion, another VA examiner opined that it was less likely than not that the Veteran had bilateral hearing loss as a result of his in-service noise exposure. The Board notes that the negative nexus opinion that was provided by the September 5, 2013 VA examiner appears to be based in part on the absence of documented hearing loss disability in the Veteran's service treatment records as the examiner noted that the Veteran had normal hearing at enlistment and separation with no significant threshold shift. The absence of documented hearing loss is service is not fatal to a service connection claim for bilateral hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has a current bilateral hearing loss disability that resulted from his in-service noise exposure. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, all doubt is resolved in favor of the Veteran, and service connection for a bilateral hearing loss disability is warranted. See 38 U.S.C. § 5107(b). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. The Veteran has contended that his claimed left hip and cervical spine disabilities are related to service to include as secondary to his now service-connected lumbar spine disability. Notably, while the Veteran underwent a VA examination for a cervical spine disability in August 2013, the examiner did not provide an etiology opinion for the Veteran's diagnosed neck strain disability. Additionally, while the January 2020 private physician and the Veteran's ex-wife, a nurse, in a May 2021 correspondence indicated that the Veteran's back problems resulted from his service, neither specifically addressed the Veteran's neck or left hip disabilities. Additionally, while the Veteran has been granted service connection for a lumbar spine disability and associated bilateral lower extremity radiculopathy, the Veteran also has a current diagnosis of left hip osteoarthritis which is potentially a separate and distinct disability from his now service-connected radiculopathy. Notably, the Veteran has yet to undergo a VA examination regarding his left hip disability. Thus, the Board finds that the evidence currently of record is insufficient to resolve the claims for entitlement to service connection for a cervical spine and left hip disability and that further opinions in connection with these claims are necessary for a fully informed evaluation of the claims on appeal. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.159(c) (4). Accordingly, the Board finds that the Veteran should be scheduled for a VA examination and opinion to determine whether the Veteran's claimed cervical spine and left hip disabilities are related to service, to include as secondary to his now service-connected lumbar spine disability. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for a VA examination to determine the etiology of the claimed cervical spine and left hip disabilities. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's has a current cervical spine or left hip disability (separate and distinct from his service-connected lower left extremity radiculopathy disability) that is related to any incident of the Veteran's active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that any such current cervical spine or left hip disability is caused or aggravated by his now service-connected lumbar spine disability. If the examiner finds that the Veteran has a current cervical spine or left hip disability that has been permanently aggravated/worsened by his service-connected lumbar spine disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.