Citation Nr: 22018028 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 19-21 247 DATE: March 28, 2022 REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for thoracic spine condition is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1968 to March 1970, to include service in the Republic of Vietnam. These matters are on appeal to the Board of Veterans' Appeals (Board) from an August 2016 rating decision. In October 2019, the Board denied the Veteran's claims. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In July 2021, the Court issued a Memorandum Decision that set aside the October 2019 Board decision and remanded the claims. The case has been returned to the Board for compliance with the directives contained in the July 2021 Memorandum Decision. As will be discussed below, the July 2021 Memorandum Decision indicated the Board's previous characterization of the Veteran's back disability claim as "thoracic spine" disability was unclear in light of the record noting lumbar spine diagnoses. Therefore, the Board has recharacterized the Veteran's thoracic spine disability claim as a back disability claim. Service connection for cervical spine, back, bilateral hearing loss, and hypertension The Court's July 2021 Memorandum Decision indicated that the Board erred by not ensuring VA fulfilled its duty to assist in not obtaining outstanding Social Security Administration (SSA) records. Additionally, the Memorandum Decision noted the Board did not provide adequate reasons or bases indicating whether the presumption of soundness attached to the cervical and back disabilities. Also, the Board's discussion of the presumption of soundness as to the hearing loss claim was unclear. Further, the Memorandum Decision indicated the Board did not provide reasons or bases for finding June 2016 and March 2019 VA audiological examinations adequate and probative in denying the Veteran's hearing loss claim as the reports were conflicting in relying on the 2005 Institute of Medicine (IOM) report. Finally, the Memorandum Decision noted the Board did not provide adequate reasons or bases for its reliance on a March 2019 VA examiner's opinion in denying the Veteran's hypertension claim. As indicated above, the Veteran is in receipt of SSA disability benefits. There is no indication in the record that any attempts have been made to obtain records in conjunction with the Veteran's claim for SSA disability benefits and, indeed, his SSA records are not currently in the claims file. Therefore, on remand, any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). With regard to the Veteran's claims of service connection for cervical spine and back disabilities, the Board notes that the Veteran's service treatment records indicate an automobile accident approximately one year prior to service. The Veteran's January 1968 pre-induction examination noted that this accident resulted in occasional residual neck and back pain. However, the Veteran was not assessed with any cervical or back disability at that time as examination of the cervical spine and back revealed normal findings. He is therefore presumed sound on entrance to service, although the claims file includes a note from a private physician noting treatment after the accident, as well as three follow-up visits in service regarding pain from the accident. Specifically, a March 1968 treatment record indicated the Veteran was still experiencing pain in the thoracic area of his back; he was referred to physical therapy. An April 1968 record shows he was treated with hot packs and physical therapy. A June 1968 record showed the Veteran complained of neck pain from his accident. The record indicated full range of motion, X-rays within normal limits, and no pathology found. No neck or back condition was noted in his separation examination. The Veteran underwent VA neck examinations in July 2016 and May 2019. In 2016, the examiner diagnosed the Veteran with a cervical strain. The examiner found that the Veteran had a cervical sprain from a whiplash injury one year prior to entering the military, yet it was treated conservatively and there were no follow-ups after June 1968. The examiner concluded that the military did not aggravate his cervical condition, and that his current cervical condition is not caused or as a result of any activities while in service. In 2019, the Veteran was diagnosed with degenerative disc disease of the cervical spine. This examiner also concluded that the Veteran's pre-existing whiplash injury was not permanently aggravated beyond normal progression by his service, and also that his current condition is less likely than not incurred in or a result of service. His rationale was largely the same as the 2016 examiner. The Veteran underwent VA back examinations in 2016 and 2019. The examiner's rationale and conclusions were largely similar to that of the cervical examination. The 2016 examiner reasoned that there were three follow-up visits for pain following his accident prior to service, with no treatment afterward until 2007, when he was diagnosed with spondylolisthesis. The examiner concluded that the Veteran had an upper trapezius and upper thoracic spine pre-existing condition that was not aggravated by service. His current L5-S1 spondylolisthesis was not caused by or a result of his service. Pertinently, none of the VA examiners specifically opined as to whether there was clear and unmistakable evidence that the Veteran's cervical spine and back disabilities preexisted service and if so, whether there was clear and unmistakable evidence that they were not aggravated by service. In light of the foregoing, the Board finds that opinions for such should be obtained on remand. With respect to the Veteran's claim of service connection for bilateral hearing loss, the Veteran asserts his hearing loss is a result of noise exposure in-service. The Board notes that the Veteran currently has a bilateral hearing loss disability for VA evaluation purposes. See a March 2019 VA examination report. The Board also notes that there is a diagnosis of "defective hearing" on the Veteran's pre-induction examination. Indeed, the Veteran's auditory threshold at 4000 Hz was 55 dB in the left ear. Upon separation, however, the Veteran's auditory threshold at 4000 Hz was 15 dB. It is therefore unclear as to whether the Veteran had a preexisting left ear hearing loss disability. The Veteran was provided VA audiological examinations in June 2016 and March 2019. After examination of the Veteran, both VA examiners concluded that it was not at least as likely as not that the Veteran's current hearing loss was related to service. However, the examiners' rationales for their conclusions were based in part on their reliance on an Institute of Medicine report. The Court has stated that when an opinion relies on the 2005 Institute of Medicine (IOM) report entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus, as is the case here, the Board must assess the underlying medical text evidence when it may affect the probative value and adequacy of the medical opinion. McCray v. Wilkie, 31 Vet. App. 243, 249 (2019). This IOM report states there was not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure, and that definitive studies to address this issue have not been performed. Id. Therefore, the VA examiners relied upon an inconclusive study to give an opinion regarding etiology. There is no other medical opinion of record as to the etiology of the Veteran's hearing loss. In light of the foregoing, the Board finds that an opinion for such should be obtained on remand. The matters are REMANDED for the following action: 1. Request the SSA to provide copies of any records pertaining to the Veteran's application for SSA disability benefits, in any, to include any medical records obtained in connection with the application. Any materials obtained should be associated with the Veteran's VA claims folder. If, after continued efforts to obtain Federal records the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 2. Thereafter, forward the Veteran's claims folder to an appropriately qualified medical professional to obtain opinions as to the etiology of the Veteran's cervical spine and back disabilities. The examiner is requested to review all pertinent records associated with the claims file. If the examiner determines that an opinion cannot be rendered without examination of the Veteran, then provide the Veteran with the examination. The examiner must provide an opinion as to the following: a. Whether there is clear and unmistakable evidence that the Veteran had a cervical spine disability prior to his active service. In rendering this opinion, the examiner should cite to supporting evidence in the claims folder and address the Veteran's automobile accident one year prior to service and his report of cervical pain on his January 1968 pre-induction examination as well as the normal neck examination at that time. Clear and unmistakable means obvious and undebatable. The examiner should clearly establish whether all complaints equate to a diagnosable disorder or do not result in a diagnosable disorder. b. If it is determined that the Veteran's current cervical spine disability pre-existed his active service, provide an opinion as to whether there is clear and unmistakable evidence that it was NOT aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disability. In rendering this opinion, the examiner should cite to supporting evidence in the claims folder. Clear and unmistakable means obvious and undebatable. c. If it is determined that the Veteran's current cervical spine disability did not pre-exist his active service, provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current cervical spine disability is etiologically related to his period of active service. d. Whether there is clear and unmistakable evidence that the Veteran had a back disability prior to his active service. In rendering this opinion, the examiner should cite to supporting evidence in the claims folder and address the Veteran's automobile accident one year prior to service and his report of cervical pain on his January 1968 pre-induction examination as well as the normal neck examination at that time. Clear and unmistakable means obvious and undebatable. The examiner should clearly establish whether all complaints equate to a diagnosable disorder or do not result in a diagnosable disorder. e. If it is determined that the Veteran's current back disability pre-existed his active service, provide an opinion as to whether there is clear and unmistakable evidence that it was NOT aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disability. In rendering this opinion, the examiner should cite to supporting evidence in the claims folder. Clear and unmistakable means obvious and undebatable. f. If it is determined that the Veteran's current back disability did not pre-exist his active service, provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current back disability is etiologically related to his period of active service. The examiner must provide a rationale for his or her opinion. 3. Forward the Veteran's claims folder to an appropriately qualified medical professional to obtain an opinion as to the etiology of the Veteran's hearing loss. The examiner is requested to review all pertinent records associated with the claims file. If the examiner determines that an opinion cannot be rendered without examination of the Veteran, then provide the Veteran with the examination. The examiner must provide an opinion as to the following: a. Whether the Veteran had a left ear hearing loss disability prior to service. In providing this opinion, the examiner should reference the Veteran's January 1968 pre-induction service examination which noted 55 dB at 4000 Hz in the left ear as well as the Veteran's February 1970 separation examination which noted 15 dB at 4000 Hz in the left ear. b. If the Veteran had a preexisting left ear hearing loss disability, whether the Veteran's preexisting left ear hearing loss disability was aggravated during service beyond the natural progression of the disease. c. If the Veteran did not have a preexisting left ear hearing loss disability, whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current left and right ear hearing loss disability is etiologically related to his period of active service. The examiner must provide a rationale for his or her opinion. The examiner cannot rely solely on the IOM report (see discussion above) without addressing how it applies to the facts of this case. Hannah Fisher Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.