Veteranclaims’s Blog

October 27, 2021

Single Judge Application; This Court has held that “[l]ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim of service connection.'” Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)). As this Court has often noted, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet.App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet.App. 15, 19 (1991) (noting that the “regulation requires continuity of symptomatology, not continuity of treatment”);

Filed under: Uncategorized — Tags: — veteranclaims @ 11:55 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2504
OBIE D. HARRISON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Obie D. Harrison, through counsel, appeals a
December 18, 2018, Board of Veteran’s Appeals (Board) decision in which the Board denied
service connection for a neck condition and bilateral hearing loss. Record of Proceedings (R.) at
4-22. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed to fulfill its duty to assist and
provide adequate reasons or bases, the Court will vacate the Board’s decision and remand the
matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served in the U.S. Marine Corps from December 1976 to May 1981. R. at

  1. His military occupational specialty (MOS) was that of administrative clerk. Id. Review of
    the service treatment records reflect that at the January 1974 enlistment examination, his right ear
    puretone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were 20, 5, 0, 10, and
    15, respectively. R. at 725. In addition, his left ear puretone thresholds in the same decibels were
    15, 10, 5, 25, and 30, respectively. Id. A May 1977 clinical record reflects that since the appellant
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    was involved in a car accident on May 21, 1977, he complained of pain in the right side of his neck
    that lasted for 2 weeks. R. at 1258. Clinical records dated in June and August 1977 document the
    appellant’s complaints of ongoing neck pain that radiates towards his right shoulder. At the April
    1981 discharge examination, his right ear puretone thresholds, in decibels, at 500, 1000, 2000,
    3000, and 4000 Hertz were shown to be 5, 5, 5, 15, and 25, respectively. R. at 1246-47. The left
    ear puretone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were shown to be
    5, 5, 5, 25, and 15, respectively. Id.
    A February 2004 treatment report addresses the appellant’s postservice medical history,
    noting that in a November 2003 work-related injury, he had hit his head on the ceiling while
    climbing an 8-foot ladder. R. at 6551. He reportedly subsequently developed headaches and pain
    throughout his right leg as well as cervical pain, and was diagnosed with post-traumatic cervical
    and low back pain. R. at 6551-52. An April 2004 MRI of the cervical spine revealed an impression
    of “severe degenerative disc disease with an annular disc bulge and spondylosis flattening the
    cervical cord” at the C5-6 level. R. at 6577. The MRI also revealed a 3-millimeter right parasagittal
    disc herniation with spondylosis impinging upon the right C5 nerve root sleeve. Id. At a June 2005
    treatment visit, the physician, Dr. C.C., noted that after the appellant was injured in the November
    2003 injury, he underwent subsequent diagnostic studies, the results of which reflect a “very
    significant preexisting, ordinary disease of life, degenerative disk disease.” R. at 4497, 4500.
    When asked whether the effects of the appellant’s injury had resolved by April 2004, and additional
    treatment was not medically necessary, Dr. C.C. said, “yes,” and added that “even with the
    additional medical records . . . this patient has extensive preexisting, ordinary disease of life,
    degenerative disk disease, for which he does not elect a surgical option.” Id.
    In July 2005, the appellant filed claims for several disorders, to include his cervical spine
    disorder and bilateral hearing loss. R. at 6400. In a February 2007 rating decision, the regional
    office (RO) denied the claims for service connection for chronic cervical spine strain with muscle
    spasm and bilateral hearing loss. R. at 5366-72. The appellant filed a Notice of Disagreement
    (NOD) with the February 2007 rating decision in December 2007. R. at 5318. In the March 2008
    Statement of the Case (SOC), the RO continued to deny service connection for chronic cervical
    spine strain with muscle spasms and bilateral hearing loss. R. at 5112-5213. In an April 2008 VA
    Form 9, the appellant perfected his appeal of this claim and asserted that his disabilities first
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    manifested during active service, and he was re-injured again postservice while working. R. at
    5110-11.
    The appellant was afforded a VA medical examination and opinion for his neck condition
    in June 2011. R. at 4797-4809. During the examination, the appellant reported that he was
    involved in a motor vehicle accident at which time he suffered a whiplash type injury “with
    problems with [his] right shoulder and neck.” R. at 4802. He further maintains that his condition
    has progressively worsened since his period of service. Id. After evaluating the appellant and
    reviewing his claims file, the VA examiner determined that the appellant’s cervical spine condition
    is less likely as not caused by or a result of his military service. R. at 4808. In reaching this
    determination, the examiner noted that review of the appellant’s claims file reflects that the
    appellant was working when he sustained an injury to his neck and back, and although he was seen
    numerous times “while in the military for muscle spasms in the neck following an MVA, [he] was
    able to return to duty.” R. at 4808-09. According to the examiner, “[i]t is unlikely that if he had
    had a severe injury to the neck as revealed in the 2004 MRI[,] . . . he would have been able to
    work.” R. at 4809. The examiner concluded that based on a review of the appellant’s service
    treatment records and records in his claims file, it is less likely that the current neck disorder is
    related to his motor vehicle accident in service and more likely that this disorder is related to his
    “worker’s comp injury in 2004.” R. at 4808-09.
    At the December 2012 hearing, the appellant testified that he began experiencing a cervical
    neck condition after he was involved in a head-on collision in-service. R. at 1332-33. He further
    testified that he continued seeking treatment for his neck condition throughout his time in service
    and that after he was discharged from service, he self-medicated. Id. The appellant also reported
    that his hearing had deteriorated since his in-service accident and that his wife also noticed his
    hearing difficulties throughout their years of marriage. R. at 1337. According to the appellant, his
    hearing has worsened since service. Id.
    After reviewing the appellant’s service treatment records, in an April 2014 decision the
    Board found “some indication that the [appellant] may have current bilateral hearing loss . . .
    related to military noise exposure to artillery fire and/or illness during service,” concluding that
    the appellant should be afforded a VA examination to determine the nature and etiology of his
    claimed disability. R. at 1313. Regarding the appellant’s claimed neck disability, the Board found
    that the June 2011 VA examination did not address conflicting medical opinions of record “or state
    4
    the significance . . . as to why degenerative disc disease was reportedly worse on the right side on
    MRI of the [appellant’s] cervical spine in April 2004.” R. at 1315. The Board determined that an
    addendum opinion was necessary for the purpose of clarification. Id. When providing an
    etiological opinion, the examiner, in addition to reviewing the claims file, and considering the
    appellant’s lay statements, was asked to consider the June 2004 statement of Dr. R.A. and the June
    2005 statement of Dr. C.C., both of which alluded to the fact that the appellant’s cervical spine
    condition had degenerated before the November 2003 work-related injury. R. at 1317-18.
    In a March 2016 VA audiological examination, the appellant reported having worked as a
    personnel administrator in service, a position that included limited noise exposure. R. at 509, 505-
  2. The appellant also reported having worked in construction and around heavy equipment for
    23 years. Id. The VA examiner noted that according to the January 1974 enlistment examination,
    the appellant’s right ear hearing was within normal limits and his left ear hearing showed mild
    hearing loss at 4000 Hertz. R. at 505. The March 2016 examiner further noted that the April 1981
    discharge physical reflected the appellant’s hearing to be within normal limits bilaterally “with no
    significant worsening of hearing thresholds compared to the enlistment physical.” Id. Per the
    March 2016 VA examiner, the appellant’s right ear hearing loss is less likely as not caused by or a
    result of an event in military service. R. at 508-09. The VA examiner explained that the service
    treatment records “documented no significant worsening of hearing when comparing the 1981
    discharge physical to the 1974 enlistment physical.” Id. Although the discharge physical noted a
    shift in hearing at 4000 Hertz for the left ear, this shift indicated that the appellant’s hearing had
    improved at that frequency. Id. The March 2016 examiner also found no evidence that the
    appellant’s hearing loss had manifested to a compensable degree within 1 year of military discharge
    or shortly afterwards, further noting that the appellant had not reported the onset of hearing loss
    during his military service or shortly afterwards. Id. Though the examiner acknowledged the
    appellant’s reports that during service he had been in the vicinity of artillery fire, she observed that
    the appellant was a personnel clerk and did not actually operate or fire the equipment. Id.
    The appellant was afforded another VA examination in connection with his cervical spine
    condition in March 2016. R. at 488-96. The examiner diagnosed the appellant with degenerative
    arthritis of the cervical spine and determined that this condition was less likely than not incurred
    in or caused by the claimed in-service injury, event, or illness. R. at 495. In reaching this
    determination, the examiner noted that “[t]here is no physical exam or imaging in the record to
    5
    support the . . . contention that the cervical DJD pre-ceded a 2003 injury.” R. at 496. The examiner
    further noted that the appellant had separated from service 22 years prior, in May 1981, and neither
    the service treatment records nor the post separation records document a diagnosis of cervical DJD
    until 2003. Id. The examiner noted that the appellant was gainfully employed post-service, and
    there is no evidence of continuing neck and right shoulder complaints, medical care, or treatment
    for such conditions during the years between the appellant’s separation from service and his
    post-service injury. Id. Noting the appellant’s 1977 in-service injury, the examiner wrote that “it
    was the left shoulder that was symptomatic after the appellant’s head on collision when the veteran
    was wearing a seat belt.” Id. According to the examiner, as the driver in the collision, the appellant
    would have injured his left neck and left shoulder where the seat belt crossed his body from lower
    right to upper left, and a left neck and shoulder injury is consistent with his complaints at the time.
    Id. The examiner further noted that there was no evidence of continuing care over the years for
    injuries or complaints due to that MVA. Id. The VA examiner noted that a review of the appellant’s
    claims file was absent a copy of Dr. C.C.’s June 2005 statement. Id.
    In an April 2016, Supplemental Statement of the Case (SSOC), the RO continued to deny
    service connection for bilateral hearing loss and a cervical spine condition. R. at 445-58. In a
    January 2017 decision, the Board determined that the March 2016 VA audiological examination
    was inadequate because it is not apparent that the VA examiner considered the appellant’s lay
    statements regarding the onset of his claimed hearing loss “as related to the moving vehicle
    accident which occurred while in service.” R. at 232. The Board remanded this claim for a
    supplemental opinion. Id. The Board also noted that when opining on whether the appellant’s
    cervical spine disorder “at least as likely as not had its onset during or was etiologically related to
    any incident of [the appellant’s] military service,” the VA examiner who evaluated the appellant
    regarding his cervical spine condition had failed to consider Dr. C.C.’s June 2005 statement, which
    alluded to “the existence of degeneration in the cervical spine prior to the November 2003 workrelated
    injury.” R. at 233. The Board notes that review of the appellant’s claims file reflects that
    the June 2005 statement from Dr. C.C. is of record, and thus, an addendum to that examination
    report is also necessary. Id.
    In the January 2017 VA addendum opinion, the VA examiner found “no support in the
    available evidence for a contention that [the appellant’s] . . . neck injury in service caused a chronic
    condition.” R. at 224. The appellant was also provided an addendum VA medical opinion for his
    6
    bilateral hearing loss in January 2017. R. at 210. In this opinion, the examiner noted that the service
    treatment records documented “NO significant worsening shifts in hearing thresholds during
    military service” and “no complaints of hearing loss.” Id. The examiner further noted that the
    appellant “did not have combat experience and his MOS as an administrative clerk had a low
    probability of noise exposure,” though the appellant reported more than 20 years of postmilitary
    civilian occupational and recreational noise exposure. Id. According to the examiner, based on the
    evidence provided, the appellant’s hearing loss was not related to his military service. Id.
    In a June 2017 SSOC, the RO continued to deny service connection for bilateral hearing
    loss and a cervical spine condition. R. at 204-08. In September 2017, the Board again found that
    “it is not apparent that the VA examiner considered the lay statements regarding the onset of the
    [the appellant’s] claimed hearing loss” as related to the MVA. R. at 190. The Board also found the
    VA examination for the appellant’s neck condition “inadequate” because the examiner “again did
    not review the private doctor’s report.”. R. at 191. The Board required the examiner to “consider
    the [appellant’s] lay statements regarding his in-service noise exposure, to include the moving
    vehicle accident which occurred while in service.” Id. at 193. Finally, the Board also required that
    a new examiner “note and consider” Dr. C.C.’s report. Id.
    In a November 2017 VA addendum opinion, the VA audiologist reviewed the claims file,
    to include the appellant’s lay statements, and noted that all the service treatment records “clearly
    document that there were no significant permanent worsening shifts in hearing thresholds during
    military service nor shortly after service.” R. at 148. The VA audiologist noted that complaints of
    hearing loss were denied, and there was no documentation to connect the appellant’s hearing loss
    to his vehicle accident. Id. The VA audiologist further observed that the appellant had reported
    many years of postmilitary civilian occupational and recreational noise exposure. Id. According to
    the VA audiologist, the appellant’s “lay statement do not override the clear and present evidence
    in the service treatment records and VAMC records.” Id. Based on the evidence provided, the
    examiner determined that the appellant’s hearing loss was not related to his military service. Id.
    In March 2018, the appellant was afforded a VA examination in connection with his neck
    condition. R. at 129-40. During the evaluation, he explained that he was involved in a motor
    vehicle accident while serving in North Carolina, at which time his neck was injured. R. at 130.
    He reported having experienced ongoing pain since the onset of this injury. Id. The examiner
    determined that the appellant’s neck condition is not related to service because his discharge
    7
    examination was “negative for” a neck condition, and that a neck condition was not reported again
    until 2005. Although the VA examiner acknowledged Dr. C.C.’s June 2005 report, he found no
    evidence of record to corroborate the conclusion that the appellant had a cervical spine condition
    that preexisted the November 2003 workplace injury. R. at 110. In a September 2018 SSOC, the
    RO continued to deny the claims on appeal. R. at 75-84.
    In the December 2018 decision, the Board concluded that though the appellant is currently
    diagnosed with degenerative arthritis of the cervical spine, “the preponderance of the evidence
    weighs against finding that the [appellant’s] neck condition is related to an in-service injury, event,
    or disease, to include the in-service motor vehicle accident.” R. at 7. In reaching this determination,
    the Board noted the service treatment records documenting the appellant’s May 1977 in-service
    neck injury and treatment he received in June, August, and September 1977. Id. The Board found
    that no additional service treatment records show that “the [appellant] received any additional
    treatment for a neck condition in service following his immediate treatment after the May 1977
    motor vehicle accident.” Id. The Board further found that following service, no available medical
    records “document any treatment for a neck condition prior to a November 2003 workplace injury
    in which the [appellant] struck his head on a concrete ceiling while standing on a ladder.” Id. The
    Board noted the June 2005 medical record in which Dr. C.C. found “that the effects of the
    workplace injury had resolved by April 2004 and that the [appellant] had extensive preexisting
    ordinary disease of life degenerative disc disease independent of the workplace injury.” R. at 8.
    The Board noted that although Dr. C.C. referred to diagnostic testing generally, “[n]o rationale
    was offered for this statement.” Id. In the rest if its decision, the Board reviewed and recited the
    VA and private medical records, as well as the VA medical examinations related to the appellant’s
    cervical spine condition. R. at 8-10. After considering the record, the Board determined that the
    preponderance of the evidence weighs against determining that service connection is warranted
    for a neck condition. R. at 10.
    The Board also concluded that a preponderance of the evidence weighs against service
    connection for bilateral sensorineural hearing loss. R. at 16. The Board found that service treatment
    records do not show any complaints of or treatment for hearing difficulties, and the appellant’s
    service treatment records do not contain evidence of sensorineural hearing loss in either ear for
    VA purposes at any point during his military service. Id. The Board further finds that the earliest
    documentation of a diagnosis of hearing loss appears in the September 2011 VA general
    8
    examination. Id. The Board acknowledged the appellant’s lay statements regarding the ongoing
    hearing difficulties he experienced following his in-service motor vehicle accident, finding the
    appellant competent to testify as to when his hearing loss symptoms began. Id. However, the Board
    found that the appellant was not diagnosed with hearing loss until September 2011, nearly 30 years
    after his discharge from service; the Board considered this to be “persuasive evidence tending to
    demonstrate that there is no continuity of symptomatology after service.” Id. The Board further
    determined that the appellant has not provided any objective medical evidence to support his
    assertion that his hearing loss began after the motor vehicle accident and continued to the present.
    Id. According to the Board, assessing hearing loss as a disability requires findings in accordance
    with 38 C.F.R. § 3.385, and the appellant does not have the audiological training or credentials to
    assess whether his hearing loss has met this threshold. R. at 17. The Board ultimately accorded
    more probative weight to the VA audiological opinions, finding that “the examiner based her
    conclusions on a thorough review of the available lay and medical evidence and supported those
    conclusions with a sufficient rationale.” R. at 17-18.
    II. ANALYSIS
    In rendering its decision, the Board is required to provide a written statement of reasons or
    bases for its “findings and conclusions[ ] on all material issues of fact and law presented on the
    record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to
    understand the precise basis for the Board’s decision and to facilitate review in this Court. Gilbert
    v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze
    the credibility and probative value of the evidence, account for the evidence it finds persuasive or
    unpersuasive, and provide the reasons why it rejects any material evidence favorable to the
    claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
    1996) (table).
    Although the law places no reasons-or-bases requirement on a medical examiner, “an
    adequate medical report must rest on correct facts and reasoned medical judgment so as [to] inform
    the Board on a medical question.” Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012); see Nieves-
    Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (“It is the factually accurate, fully articulated,
    sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”).
    9
    A. Hearing Loss
    The appellant maintains that the Board’s finding that “the absence of objective medical
    evidence until [the appellant’s] diagnosis in September 2011 demonstrates that he has not
    experienced a ‘continuity of symptomatology after service’ is directly contradicted by his lay
    statements of experiencing hearing difficulties since service.” Appellant’s Brief (Br.) at 12.
    According to the appellant, the Board did not find the appellant’s lay statements of worsening
    hearing acuity since service “not credible,” and to the extent the Board did make an implicit adverse
    credibility finding, “its reliance on the absence of objective medical evidence of a diagnosis, rather
    than on [the appellant’s] attestation of continuous symptoms, renders its reasons or bases
    inadequate.” Id. The appellant also contends that “the Board failed to provide the requisite
    foundation for considering the absence of medical documentation of a diagnosis of bilateral
    hearing loss until September 2011 as evidence against [the appellant].” Id. at 13. Per the appellant,
    the Board’s reliance “on the absence of medical documentation of bilateral hearing loss under VA
    standards at discharge would effectively preclude service connection for bilateral hearing loss
    based on continuity of symptomatology pursuant to 38 C.F.R. §3.303(b).” Id. Therefore, the
    appellant maintains, the Board “failed to adequately analyze whether [he] is entitled to service
    connection for bilateral hearing loss on the basis of continuity of symptomatology pursuant to 38
    C.F.R. §3.303(b).” Id. at 14. In response, the Secretary maintains that the appellant’s arguments
    about the Board’s statement of reasons or bases are unpersuasive. Secretary’s Br. at 22. According
    to the Secretary, in finding the appellant not competent to determine whether he has a hearing loss
    disability under VA’s regulations, “the credibility of such statements is moot,” and “contrary to
    [a]ppellant’s assertion, the Board considered the provisions of §3.303(b) but concluded that the
    evidence, to include the normal separation audiometry results, did not show continuous
    symptomatology.” Id. at 22-23.
    In the December 2018 decision, the Board acknowledged the appellant’s assertions that his
    hearing difficulties began after his in-service motor vehicle accident and have continued to
    deteriorate. R. at 16. The Board found the appellant “competent to testify as to when his symptoms
    of hearing loss began.” Id. However, the Board determined that the absence of evidence of bilateral
    hearing loss for nearly 30 years after his discharge “coupled with the finding of no hearing loss
    under VA standards on the separation examination far outweighs the [appellant’s] assertion that
    his hearing loss began in service.” R. at 16-17. The Board further noted that the appellant does
    10
    not have the audiological training or credentials to assess whether his hearing loss has met these
    thresholds. R. at 17. When evaluating the appellant’s lay assertions regarding the origin of his
    bilateral sensorineural hearing loss, the Board determined “that there is no evidence in the record
    showing that the [appellant] has the medical or audiological training, credentials, or other expertise
    to competently conclude that his hearing loss is attributable to in-service noise exposure or the
    motor vehicle accident.” Id.
    The Court agrees with the appellant that though the Board in large part ignored the
    appellant’s lay testimony of ongoing hearing problems since service, the Board did not find the
    appellant’s lay statements not competent and not credible. In Miller v. Wilkie, 32 Vet.App. 249,
    261 (2020), the Court held that “[w]hen the Board has made its decision without finding that the
    veteran is not competent to report symptoms and nothing suggests that the Board failed to review
    the evidence at issue, we may reasonably conclude that it implicitly found the veteran credible.”
    Likewise here, because the Board made its decision without finding the appellant not credible and
    because nothing suggests the Board failed to review the evidence at issue, we may reasonably
    conclude that the Board implicitly found the appellant’s hearing testimony – that he noticed
    symptoms of hearing loss following his in-service motor vehicle accident and since then has
    experienced symptoms of hearing loss – factual and supportive of his contentions. R. at 1337. The
    Court also agrees with the appellant that the Board did not establish the factual predicate necessary
    for relying on a gap between the appellant’s service and his 2011 diagnosis to decide this case. See
    Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet.App.
    231, 240 n.7 (2012) (stating that, when the Board uses the absence of evidence as negative
    evidence, there must be “‘a proper foundation … to demonstrate that such silence has a tendency to
    prove or disprove a relevant fact.'” (quoting Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011)
    (Lance, J., dissenting))).
    Moreover, the Board, in relation to the appellant’s tinnitus claim, found the March 2016
    examiner’s opinion attributing the appellant’s tinnitus to his hearing loss not probative because
    “they did not account for all of the [appellant’s] credible report of having been exposed to loud
    noise in service.” R. at 19. The Court remains unclear as to why, with respect to the tinnitus claim,
    the Board discounted the probative value of the March 2016 audiological opinion based on the fact
    that the examiner did not consider the appellant’s credible reports of in-service noise exposure, yet
    with respect to the bilateral hearing loss claim the Board did not find that this same oversight
    11
    affected the adequacy of the opinion. The Board moreover did not explain why, in the context of
    the appellant’s hearing loss claim, the examiner’s oversight did not produce an insufficient factual
    predicate. For this and the other reasons discussed above, remand is warranted.
    The appellant also contends that the Board failed to ensure that VA’s duty to assist was
    satisfied because the VA medical opinions of record are inadequate “as they relied on an inaccurate
    factual premise and the absence of objective medical evidence, and did not consider appellant’s
    lay statements attesting to his continuous symptoms since service.” Appellant’s Br. at 16. With
    regard to the March 2016 VA medical opinion, the appellant contends that “the examiner’s
    rationale that [the appellant] did not ‘report onset of hearing loss during military service’ is
    contradicted by his lay testimony of observing a decrease in hearing acuity during service.” Id. at
  3. Thus, the appellant contends that the examiner’s opinion is based on an inaccurate factual
    premise, and at a minimum, the examiner’s opinion “dismissed [the appellant’s] lay testimony
    regarding the onset of his symptoms of hearing loss.” Id. In addition, the appellant contends that
    “the examiner’s rationale relying on [the appellant’s] MOS is misplaced because the Board has
    conceded that he was exposed to hazardous levels of noise during service.” Id.; R. at 18-19. With
    regard to the January 2017 VA opinion, the appellant points out again that “the examiner’s finding
    that there ‘were no complaints of hearing loss’ during service” is based on an inaccurate factual
    premise, and the examiner dismissed the appellant’s lay testimony regarding the onset of his
    hearing loss symptoms. Id. at 20. According to the appellant, “the examiner failed to adequately
    address [the appellant’s] military and post-service noise exposure noise exposures.” Id. at 21. As
    for the November 2017 VA medical opinion, the appellant observes that “while the examiner
    asserted that she reviewed [the appellant’s] lay statements, it is clear that she dismissed them.” Id.
    at 22. The appellant also notes that similar to her predecessors, “the examiner wrongly found . . .
    no ‘complaints of hearing loss’ during service.” Id.
    In response to the appellant’s contentions, the Secretary argues that when the appellant
    disputes the adequacy of the VA examination reports the appellant demonstrates a lack of
    understanding of the record, the contents of the VA hearing loss examination reports, and the
    Court’s caselaw. Secretary’s Br. at 13. The Secretary contends that the appellant’s assertion that
    the March 2016 and January 2017 reports “are based on an inaccurate factual premise because the
    examiners correctly observed that there was not a single complaint of hearing loss in service is
    baseless.” Id. According to the Secretary, the March 2016 VA examiner’s statement that the
    12
    appellant “did not ‘report onset of hearing loss during military service or shortly afterwards'” and
    the January 2017 examiner’s assertion that the service treatment records “showed that there ‘were
    no complaints of hearing loss'” are both “entirely accurate, as there is no report of hearing loss
    anywhere in the STRs.” Id. The Secretary notes that the appellant did not allege that his hearing
    loss began after the 1977 motor vehicle accident until the December 2012 Board hearing. Id. The
    Secretary further argues that any failure in addressing the appellant’s lay statements in the March
    2016 and January 2017 medical opinions was cured by the November 2017 VA opinion, which
    did address the appellant’s lay assertions. Id. at 14. With regard to the appellant’s contention that
    the examiner dismissed his lay statements in the November 2017 VA medical opinion, the
    Secretary argues that “there is simply no requirement that the examiners accept these statements
    as medically true or accurate.” Id. at 16-17.
    In the December 2018 decision, the Board conceded the appellant’s noise exposure in
    service, and noted that “a copy of his DD Form 214 shows that he was decorated as a rifle and
    pistol marksman, which strongly suggests that he was exposed to loud arms fire while in service.”
    R. at 13. In the April 2014 remand, the Board determined that the appellant’s DD Form 214 “shows
    that he was decorated as a rifle and pistol marksman, which strongly suggests that he was exposed
    to loud arms fire while in service.” R. at 18. Thus, the Court agrees with the appellant that the
    examiner’s reliance on the appellant’s MOS is misplaced given the Board’s acceptance that he was
    exposed to loud noise in service. It is unclear whether the examiner took the appellant’s level of
    in-service noise exposure into account when issuing her etiological opinion. Moreover, in finding
    that the appellant’s lay statements do not override the clear and present evidence in the service and
    VA treatment records and in the November 2017 opinion, R. at 148, the examiner appears to be
    making a credibility determination. Medical examiners and VA adjudicators have distinct and
    separate roles in the veterans benefits system, based on the differing types of expertise each
    possesses: the medical examiner provides an opinion on medical matters and the adjudicator makes
    findings of fact and law to determine a veteran’s entitlement to disability benefits. See
    Nieves-Rodriguez, 22 Vet.App. at 301 (2008); Moore v. Nicholson, 21 Vet.App. 211, 218 (2007),
    rev’d on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The VA
    adjudicator or Board is obligated to determine the credibility of lay statements by weighing them
    against the evidence of record to determine their consistency and other relevant factors. See
    Caluza, 7 Vet.App. at 511. (1995). As discussed, the Board found that the appellant had
    13
    competently reported when his symptoms of hearing loss began, R. at 16, and implicitly found him
    credible regarding his assertions. Thus, the examiner’s credibility determination is one the Board
    did not agree with. In light of the fact that the Board found that the appellant had competently and
    credibly reported his hearing worsened since service, the examiner should have been instructed of
    the Board’s finding, and should have clearly stated whether the appellant’s worsening hearing
    following his in-service motor vehicle accident was an indication that his current hearing loss
    began during his active service.
    B. Neck Condition
    The appellant also contends that the Board failed “to explicitly address the applicability of
    38 C.F.R. § 3.303(b).” Appellant’s Br. at 14. According to the appellant, to the extent the Board’s
    finding that the appellant “did not suffer from a ‘chronic neck disability’ implies that it did consider
    whether he is entitled to service connection for a neck condition on the basis of continuity of
    symptomatology pursuant to 38 C.F.R. § 3.303(b), the Board failed to support its determination
    with an adequate statement of reasons or bases.” Id. at 14-15. The appellant further contends that
    “the Board’s reliance on the absence of objective medical evidence of treatment or a diagnosis,
    rather than on [the appellant’s] attestation of continuous symptoms, renders it reasons or bases
    inadequate.” Id. at 15. In addition, the Board “failed to provide the requisite foundation for
    considering the absence of medical documentation of treatment for or a diagnosis of a neck
    condition until after his occupational injury as evidence against [him].” Id.
    In response, the Secretary contends that the Board did consider the appellant’s lay
    statements that his cervical spine condition began after his in-service motor vehicle accident and
    persisted, “but noted that [the appellant] did not receive ongoing care for his neck after 1977.”
    Secretary’s Br. at 21. The Secretary maintains that the Board observed that there was no medical
    evidence of ongoing symptoms following the in-service accident until the November 2003
    workplace accident. Id. In addition, the Secretary notes that the Board “referenced [a]ppellant’s
    own statements about his cervical condition, noting that he specifically denied having neck
    symptoms before the 2003 accident.” Id. at 21-22. According to the Secretary, because the Board
    “discussed [a]ppellant’s lay statements of continuous symptomatology and discounted them
    because they were inconsistent with other statements . . . there can be no persuasive argument that
    it failed to address the credibility of these statements.” Id. at 22.
    14
    In the December 2018 decision, the Board determined that the preponderance of the
    evidence is against a determination that service connection is warranted for a neck condition. R.
    at 10. The Board acknowledged the appellant’s involvement in a motor vehicle accident in service
    in May 1977, that following this incident he sought treatment for symptoms of neck pain and
    spasms, and that there is no further documentation of treatment for his cervical spine symptoms
    after September 1977, “which means that the [appellant] continued in his duties in service for more
    than three additional years before his discharge without ever seeking further treatment for
    symptoms of a neck condition.” Id. The Board also found the appellant “competent to report having
    experienced symptoms of neck pain and spasms in service and ever since service,” but found him
    “not competent to provide a diagnosis in this case or to determine that these symptoms were
    manifestations of the cervical spine degenerative disc disease for which he is now receiving
    treatment.” Id.
    The Court agrees with the appellant that the Board failed to support its determination with
    an adequate statement of reasons or bases. During the December 2012 hearing, the appellant
    testified that he began experiencing pain and limited movement in his cervical spine very soon
    after his 1977 motor vehicle accident. R. at 1332. He further testified that he has experienced pain
    and decreased range of motion in his neck since his discharge from service. Id. He maintains that
    he self-treated his symptoms with over-the-counter medication, and Icy Hot packs. Id. As
    discussed, the Board found the appellant competent to report symptoms of ongoing pain and
    discomfort in his neck since service. Because the Board did not find the appellant to be not
    credible, his hearing testimony of ongoing cervical spine symptoms following his in-service motor
    vehicle accident is, therefore, factual and supports his contentions that he has experienced ongoing
    symptoms of pain and limited movement since service. R. at 1332. Thus, the Board should have
    considered these assertions accordingly. This Court has held that “[l]ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim of service connection.'” Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)). As this Court has often noted, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet.App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet.App. 15, 19 (1991) (noting that the “regulation requires continuity of symptomatology, not continuity of treatment”). The Board’s
    finding that the appellant is not competent to diagnose himself does not constitute a proper reason
    15
    to disregard his lay statements. In addition, in finding that the appellant’s in-service neck injury
    “apparently resolved at the end of 1977,” R. at 12, the Board failed to address the appellant’s lay
    assertions that his pain and spasms continued postservice. The Board cannot ignore competent
    and credible evidence, and the Board erred by demanding “objective medical evidence” supporting
    his assertions. Id.
    The appellant also contends that the VA examinations addressing his neck condition are
    inadequate for rating purposes. Appellant’s Br. at 25. Specifically, the appellant contends that the
    June 2011 VA examiner’s rationale is inadequate because it failed to consider his lay statements
    that he has suffered from progressively worsening symptoms in his neck since his in-service motor
    vehicle accident, and that his in-service neck disability was worsened by his occupational injury.
    Id. at 25-26. The appellant’s contentions are especially critical because the Board found the
    appellant “‘competent to report having experienced neck pain and spasm in service’ and
    continuously since.” Id. at 26. With regard to the March 2016 VA opinion, the appellant maintains
    that the examiner’s rationale that “‘there is no evidence of a continuum of neck’ complaints, medical
    care or treatment since service is contradicted by [appellant’s] lay testimony that he began to
    experience” neck symptoms following his in-service MVA “and that he was ‘still having pain and
    the decreased range of motion’ at discharge” but instead of going to the doctor for his symptoms,
    “he self-medicated.” Id. at 27. The appellant also found the rationale for the January 2017 VA
    medical opinion to be “nothing more than a conclusory assertion.” Id. at 28. In addition, the
    appellant determined that the March 2018 VA medical opinion was inadequate “because it relied
    entirely on the absence of objective medical evidence of a neck condition from discharge until
    2005.” Id. at 28-29. In addition, “the examiner’s finding that [the appellant’s] neck ‘condition’ was
    not ‘reported’ again until 2005 is contradicted by his competent lay statements of continuous neck
    pain since service.” Id. at 29. In response, the Secretary maintained that the appellant’s arguments
    “are unavailing.” Secretary’s Br. at 18. According to the Secretary, to the extent the appellant
    argues that the June 2011 and January 2017 VA examination reports are inadequate, these
    arguments are misplaced, because the Board did not rely on either report when it denied service
    connection for the neck condition. Id. The Secretary further maintained that the appellant “makes
    no persuasive argument that the reports the Board did rely on, the March 2016 and March 2018
    [examination reports,] are inadequate.” Id. at 19.
    16
    The Court agrees with the appellant that the VA examinations relied upon by the Board are
    inadequate. In this regard, the appellant’s lay statements, that he began to experience neck pain and
    discomfort following his in-service motor vehicle accident, contradict the March 2016 VA
    examiner’s assertions that “[t]here is no documentation either in the [service treatment records] or
    after separation that a diagnosis of cervical DJD was made until 2003″ and that during the years
    between his separation from service and the 2003 injury “‘there is no evidence of a continuum of
    neck . . . complaint[s], medical care or treatment for” his cervical spine symptoms, R. at 496. In
    addition, the March 2018 VA medical opinion did rely on the absence of objective medical
    evidence of a neck condition until 2005. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding
    that if the Board concludes that the veteran presented credible and ultimately competent lay
    evidence, the lack of contemporaneous medical evidence should not absolutely bar the veteran’s
    ability to prove his claim of entitlement to disability benefits based on that competent lay evidence)
    In light of the fact that the appellant competently and credibly reported that he experienced pain
    and spasms before 2003, then the VA medical opinions are inadequate and a new opinion is
    necessary because the examiners incorrectly assumed that the appellant had no symptoms before
    his workplace injury. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (holding that once the
    Secretary undertakes the effort to provide an examination when developing a service-connection
    claim, he must provide an adequate examination). Accordingly, remand is required for the Board
    to afford the appellant new VA medical examination or opinion in connection with his neck
    condition and bilateral hearing loss, and to provide an adequate statement of reasons or bases to
    support its decision. See 38 U.S.C. § 7104(d)(1); Duenas, 18 Vet.App. at 517.
    Given this disposition, the Court need not, at this time, address the other arguments and
    issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order)
    (holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed
    errors before the Board at the readjudication, and, of course, before this Court in an appeal, should
    the Board rule against him”). The appellant is free on remand to submit additional evidence and
    argument, including the arguments raised in his briefs to this Court, in accordance with
    Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
    consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
    (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of
    17
    the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
    and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
    III. CONCLUSION
    After considering the appellant’s and the Secretary’s pleadings, and after reviewing the
    record, the Court VACATES the Board’s December 18, 2018, decision and REMANDS the matter
    to the Board for further proceedings consistent with this decision.
    DATED: April 13, 2021
    Copies to:
    Christopher M. Toms, Esq.
    VA General Counsel (027)

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