Citation Nr: 22018189 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-21 014 DATE: March 28, 2022 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for memory loss, to include as a residual of a head injury, is denied. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's current bilateral hearing loss is related to in-service noise exposure. 2. The Veteran's cervical spine disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. Memory loss is a symptom that is currently rated as part of the Veteran's service-connected depressive disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for memory loss, to include as a residual of a head injury, have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from February 1982 to June 1992. In April 2019, the Board of Veterans' Appeals (Board) remanded the matters on appeal for additional evidentiary development, to include the provision of VA examinations and medical opinions. As a result of this development, the RO issued rating decisions in August 2020 and February 2021 which granted the Veteran's claims of entitlement to service connection for tinnitus and migraines. The remaining issues on appeal are the Veteran's claims of entitlement to service connection for bilateral hearing loss, a head injury with memory loss, and a cervical spine disability. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Hearing loss for VA compensation purposes is defined by 38 C.F.R. § 3.385. Hearing loss meets the regulatory requirements of 38 C.F.R. § 3.385 when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is at 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Certain diseases, such as sensorineural hearing loss and degenerative joint disease (arthritis), are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. That is, the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balance i.e., "nearly equal" but does not require that the evidence be in exact equipoise. Lynch v. McDonough, 999 F.3d 1391, 1394 (Fed. Cir. 2021). 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran maintains entitlement to service connection for a bilateral hearing loss disability which he believes developed due to military noise exposure during his active duty service. Based on a careful review of all the subjective and clinical evidence of record, the Board finds that service connection for bilateral hearing loss is warranted. As an initial matter, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the regulatory criteria at 38 C.F.R. § 3.385, as shown at July 2009 and May 2014 VA examinations. Next, the Board finds that the Veteran was likely exposed to loud noise during his active duty service due to his military occupational specialty (MOS) as a pavement maintenance specialist. This MOS entailed working with noisy industrial equipment, including jack hammers, dump trucks, excavators, front end loaders, back hoes, street sweepers, air compressors, power tools, and sledge and claw hammers. At issue is whether there is a nexus between the Veteran's current bilateral hearing loss disability and his in-service noise exposure. Similar to tinnitus, sensorineural hearing loss is linked with nerve damage that most often occurs "when the tiny hair cells in the cochlea are injured." Fountain v. McDonald, 27 Vet. App. 258, 266 (2015). More specifically, in Fountain, the Court referenced medical and legal authority, and noted that chronic sensorineural hearing loss, as an organic disease of the nervous system, was due to a problem in the inner ear or in the auditory nerve between the inner ear and the brain and was commonly caused by chronic exposure to excessive noise, in addition to age-related hearing loss. The Court noted that chronic sensorineural hearing loss caused by acoustic trauma resulted in damage to the inner ear and qualified as an organic disease of the nervous system under 38 C.F.R. § 3.309. Because the Veteran sustained nerve damage that caused his service-connected tinnitus, by necessary logical inference, the Veteran sustained the same nerve damage to the inner ear that caused the current bilateral sensorineural hearing loss. Based upon both medical and legal authority, the Board finds that the in-service acoustic trauma caused permanent nerve damage to the auditory nerve or inner ear, which denotes the onset of the current bilateral sensorineural hearing loss in service. Such sensorineural hearing loss is a permanent disability that was incapable of actual improvement of the nerve damage because chronic sensorineural hearing loss either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic sensorineural hearing loss that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258. Notwithstanding the above, a July 2009 a VA examiner determined that the Veteran's bilateral hearing loss was less likely than not due to his military service. He reasoned that the Veteran had normal hearing when he enlisted and when he separated from service. The VA examiner also observed that the Veteran's exposure to occupational noise in service did not make his ears more sensitive to future exposure and hearing loss, citing an American College of Occupational and Environmental Medicine (ACOEM) publication to support this assertion. He concluded that the noise exposure (acoustic trauma) in service was not related in terms of etiology to the mild sensorineural hearing loss seen at the accompanying examination. The May 2014 VA examiner echoed the reasoning and conclusion of the July 2009 VA examiner, also finding that the Veteran exhibited normal hearing during service and did not exhibit any significant threshold shift at separation. The Board finds that the reasoning provided in both medical opinions is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate). Specifically, the examiners did not provide a rationale for their ultimate conclusion that the Veteran's exposure to heavy equipment during service did not cause his hearing loss. While the May 2014 examiner determined that the Veteran did not exhibit any significant threshold shift at separation, he did not define what constitutes a "significant" threshold shift, and therefore the Board places low probative weight to both the VA opinions. The Board could remand this issue for an additional opinion. However, this is unnecessary as the probative evidence of record reveals a currently diagnosed bilateral hearing loss disability for VA purposes, established in-service noise exposure, and sustained nerve damage that caused his service-connected tinnitus, and by necessary logical inference, may be considered one of the factors that caused the current bilateral sensorineural hearing loss. 38 C.F.R. § 3.159 (c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). The evidence is in approximate balance regarding whether the Veteran's bilateral hearing loss disability is at least as likely as not related to hazardous noise exposure during his active duty service. The Veteran's claim of entitlement to service connection for bilateral hearing loss is granted. As the Board is granting service connection for bilateral hearing loss on a direct basis, the chronic disease presumptive bases are rendered moot and will not be discussed. 2. Entitlement to service connection for a cervical spine disability is denied. The Veteran maintains entitlement to service connection for a cervical spine disability which he believes he developed from a head injury sustained during active duty service and/or as due to the strenuous activity performed as a pavement maintenance specialist. Based on a careful review of all the subjective and clinical evidence of record, the Board finds that service connection for a cervical spine disability is not warranted. Turing to the evidence, the Veteran's October 1981 service enlistment examination report documents a normal head, face, neck, and scalp and musculoskeletal system; it is silent for any cervical spine disability. On the accompanying report of medical history, the Veteran denied arthritis, rheumatism, or bursitis. He endorsed a history of bone, joint, or other deformity, but this declaration related to a congenital left elbow deformity, not to his cervical spine. No preexisting cervical spine disability was reported. In February 1984, the Veteran went to sick call complaining of trauma to his forehead and a resultant headache. He had been hit in the head with an air hose. The examiner noted that the Veteran had not lost consciousness. On examination, the Veteran's head was round and symmetrical with a tender abrasion over the middle of his forehead. The Veteran's pupils were equal, round, reactive to light, and accomodation and fundi was within normal limits. Neurologically, all functioning was normal and intact. The Veteran was alert, oriented, and cooperative and no abnormalities were detected, to include with the Veteran's cervical spine. A September 1985 periodic examination report documents a normal head, face, neck, and scalp, and musculoskeletal system; it is silent for a cervical spine disability, to include as resulting from the February 1985 head injury. The Veteran denied any significant medical/surgical history since his last physical examination (October 1981 enlistment examination). The Veteran complained of neck pain related to recurrent tonsilitis and in March 1986 he was given an MRI of the cervical spine. There was no evidence of acute fracture or subluxation. The pre-cervical soft tissues were normal. There was no evidence of airway obstruction or cervical mass. The examiner found normal soft tissues and cervical spine. A September 1987 periodic examination report documents a normal head, face, neck, and scalp, and musculoskeletal system; it is silent for a cervical spine disability. The examiner indicated that the Veteran denied, and a review of medical records failed to reveal, any significant medical or surgical history since his last physical examination (September 1985 periodic examination). In March 1991, the Veteran's records were reviewed, and it was determined that a full physical examination was not required for separation. The Veteran subsequently separated from the military in June 1992. Post-service, the Veteran complained of neck pain that radiated into his bilateral upper extremities in January 2004. VA radiological testing performed that month revealed minimal degenerative disc disease and private radiological testing performed in February 2005 documented posterior disc herniation at the C6-C7 level with resulting mild to moderate spinal canal stenosis and bilateral neural foraminal stenosis. Additional VA and private treatment records throughout the appeal period document the Veteran's continued complaints of radiating neck pain which the Veteran avers began during service. The Veteran's most recent VA examination, performed in November 2019, confirmed diagnoses of cervical disc herniations and associated bilateral upper extremity radiculopathy. In January 2022, a VA examiner, following a review of the Veteran's claims file, to include his service treatment records and post-service medical records, found that the Veteran's current cervical spine disability was less likely than not incurred in or caused by the Veteran's active duty service. The examiner specifically considered both the Veteran's February 1984 injury to the forehead and his work as a pavement maintenance specialist. He observed that no cervical condition was noted following the forehead incident, or at all, as the Veteran's service record was silent with respect to a neck condition. Therefore, he concluded that there was no nexus between the present claimed cervical spine condition and the head injury incurred in service or any other incident therein, to include his work as a pavement maintenance specialist. In March 2022, the Veteran submitted a private Disability Benefits Questionnaire that documented degenerative arthritis, degenerative disc disease, intervertebral disc syndrome, and spinal stenosis. The private examiner endorsed a review of the Veteran's VA and private treatment records and opined that the Veteran's cervical spine disabilities were most likely caused by the February 1984 accident when he hit his head with an air hose, sustaining a whiplash injury to his neck. The Board finds that the January 2022 VA medical opinion is adequate and highly probative on the question of etiology, as it was provided by a medical professional who reviewed the Veteran's medical history and treatment records and supported his conclusions with findings, or lack thereof, in the record. Nieves-Rodriguez v. Peake, No. 06-3012 (Vet. App. Dec. 1, 2008). The March 2022 private medical opinion is of less probative value. While the private examiner endorsed a review of the Veteran's VA and private treatment records, he did not endorse a review of the Veteran's service treatment records, which are particularly relevant to this claim. The private examiner's assertion that the Veteran sustained a whiplash injury to his neck following the air hose accident is wholly unsupported by the Veteran's service treatment records, which only document a headache following the incident, and do not contain any mention of an injury to the Veteran's cervical spine at that or at any other time during his active duty service. The Board notes that certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. However, in this case there is no competent, credible medical evidence detailing the diagnosis of a cervical spine disability, to include arthritis, within one year of the Veteran's discharge from service to warrant a grant of service connection on a presumptive basis. He was not diagnosed with an arthritic condition until 2004, twelve years after separation. The Board has also considered the applicability of continuity of symptomatology. Service connection may be established by showing continuity of symptoms since service. 38 C.F.R. § 3.303 (a). Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptoms. Given that the Veteran's claimed cervical spine disability was not noted during service, continuity of symptomatology has not been established. Consideration has been given to the Veteran's contentions that his current cervical spine disability is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of the musculoskeletal system. See Jandreau v. Nicholson, 492 F.3 s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is certainly competent to report any cervical spine pain that he experienced during active duty service, he is not competent to link that to a diagnosis or etiology. His assertions are therefore not competent evidence of a medical nexus and are of minimal probative value. In summary, the Veteran does not meet the requirements for service connection on a direct or presumptive basis for a cervical spine disability. The claim is denied. 3. Entitlement to service connection for memory loss, to include as a residual of a head injury, is denied. The Veteran maintains entitlement to service connection for residuals of a service-related head injury, specifically memory loss. The Board notes that the other residual the Veteran claimed is due to his head injury, migraine headaches, was service-connected in a February 2021 rating decision as discussed above. Based on a careful review of all the subjective and clinical evidence of record, the Board finds that service connection for memory loss, to include as a residual of a head injury, is not warranted. The claims file reflects that the Veteran has symptoms of memory loss. However, the Veteran is currently service-connected for depressive disorder. In the Veteran's October 2021 VA examination, memory loss is documented as a symptom of the Veteran's depressive disorder and was considered in assigning the Veteran's disability rating for that condition. Pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. To award a separate grant of service connection for memory loss would constitute impermissible pyramiding. The claim is denied. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.