Citation Nr: 1322669	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  07-12 732	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1. Entitlement to service connection for a low back disorder.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Amanda Christensen, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1976 to July 1982.  

This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 RO decision.  The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in January 2008; the hearing transcript has been associated with the file and has been reviewed.  

The Board remanded the matter in May 2009, December 2011, and most recently in January 2013 for further procedural and evidentiary development.  After the January 2013 remand, the RO fulfilled the Veteran's FOIA request, confirmed no additional VA records needed to be obtained, and issued a supplemental statement of the case.  The claim has since been returned to the Board for further appellate action.  The Board is satisfied there was substantial compliance with its remand orders.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  


FINDINGS OF FACT

1.  Hearing loss was not shown during service or to a compensable degree within one year of service; hearing loss symptomatology was not continuous since service and the currently-diagnosed bilateral hearing loss is not causally related to service.

2.   Sacralization of the L5 vertebra is a congenital defect that pre-existed service and was not aggravated by service; no other currently diagnosed back disorder is causally related to service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred.  38 U.S.C.A. §§ 1131, 1132, 1133, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

2.  A preexisting congenital back disorder was not aggravated by service; a low back disorder was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1131, 1132, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).	


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

With respect to hearing loss, it is considered a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)).  On the other hand, the Veteran's low back disorder is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply.  

Service connection may also be established with certain chronic diseases, including organic diseases of the nervous system, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  

While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  As a low back disorder is not listed in 38 C.F.R. §§ 3.307, 3.309(a), the one-year presumption does not apply to that claim.  

Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  

In this decision, the Board has considered the lay evidence as it pertains to the issues.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

"Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  

A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).  

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

With respect to evaluating the medical evidence, generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  

Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

Medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  A physician's statement framed in terms such as "may" or "could" is not probative.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has reviewed all of the evidence in the Veteran's claims folder.   Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.  

Service Connection for Hearing Loss

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 Test are less than 94 percent.  38 C.F.R. § 3.385. 

The absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley  v. Brown, 5 Vet. App. 155, 159 (1993).

Post-service evidence reflects a hearing loss disability for VA compensation purposes.  In 2001, the Veteran sought treatment for difficulty understanding people.  Examination revealed the following pure tone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
25
40
50
75
LEFT
15
25
45
65
75

The diagnosis was bilateral sensorineural hearing loss.  Subsequent treatment and examination records confirm hearing loss, including August 2005 and June 2007 VA examinations.  A January 2012 VA audiological examination also showed hearing loss, although the examiner stated that the results were not valid for rating purposes.  Therefore, the Board finds that a current hearing loss disability for VA compensation purposes has been shown.  

Next, the Board acknowledges the Veteran's DD 214 indicates his primary specialty was as a submarine nuclear propulsion plant operator.  The Board has also considered the multiple statements submitted by the Veteran and his testimony at his January 2008 Board hearing in which he indicated that he was exposed to engine noise while on submarines, as well as the statements by his fellow service members describing high noise levels in the areas where he worked.  Therefore, in giving due consideration to the places, types, and circumstances of the Veteran's service, noise exposure in service is conceded.  See 38 U.S.C.A. § 1154(a).  

However, the fact that the Veteran experienced noise exposure in service is not the end of the inquiry.  In this case, a grant of service connection is not warranted because the evidence does not support a finding that such noise exposure resulted in the Veteran's currently-diagnosed hearing loss.

On the issue of in-service incurrence, on his 1976 enlistment Report of Medical History the Veteran reported no history of hearing loss.  The April 1976 entrance audiological examination showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
N/A
0
LEFT
10
0
0
N/A
0

The Veteran underwent six additional audiology examinations throughout service (February 1977, January 1980, July 1980, November 1980, August 1981, and December 1981) and all reflected normal hearing.  Of those, the August 1981 report reflected the highest thresholds of 25 db in 3000 and 4000 Hz in the right ear.  However, those readings were 5 db and 15 db respectively in the next December 1981 examination, as well as in the July 1982 separation examination which is as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
15
LEFT
5
5
5
5
10

Therefore, while the hearing acuity from enlistment to the time of discharge was not identical, none of the audiometric tests done in service, including the Veteran's July 1982 discharge examination, demonstrate impaired hearing for VA purposes under 38 CFR § 3.385.  Therefore, the medical evidence does not reflect in-service hearing loss and the second element (in-service incurrence) has not been shown.

As the Veteran's current hearing loss disorder is a chronic disability under 38 C.F.R. § 3.309(a), the Board will consider whether continuity of symptomatology has been shown.

The Veteran was discharged from service in 1982.  He filed an initial VA disability compensation claim for service connection for a back disorder in 1984, but did not claim service connection for hearing loss or make any mention of any hearing loss symptomatology.  The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology; however, here, he filed claims for service connection, but did not mention hearing loss.  This suggests to the Board that there was no pertinent hearing loss symptomatology at that time.  

While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that he is presenting all issues for which he is experiencing symptoms that they he believes are related to service.  In other words, he demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in another instance where he believed he was entitled to those benefits.  

In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted.  Thus, his inaction regarding a claim for hearing loss, when viewed in the context of his action regarding another claim for compensation, may reasonably be interpreted as indicative of his belief that he did not experience hearing loss in service, or the lack of symptomatology at the time he filed the claim, or both.  

Next, the first audiogram demonstrating auditory thresholds consistent with hearing loss for VA purposes was not until 2001 when, at a VA outpatient treatment visit, sensorineural hearing loss was diagnosed and he was fitted for hearing aids.  

In the nearly two decades between discharge and diagnosis of sensorineural hearing loss, the Veteran underwent five audiograms done by his post-service employer.  All five audiograms, from 1988 to 1993 (October 1988, October 1989, September 1990, September 1992, and September 1993) show auditory thresholds generally in the 0-15 range that do not meet the VA criteria for hearing loss.  

In September 1993, there was a single decibel reading at 35 in 4000 Hertz for the right ear.  This does not satisfy the criteria for hearing loss for VA purposes but is consistent with the Veteran's subsequent reports that he began having trouble with his hearing as early as 1992-1994.  The September 1993 audiogram was as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
15
20
5
35
LEFT
5
5
15
15
20

Further, although the Veteran told the examiner performing his employment-related October 1988 audiogram that he had high frequency hearing loss in his right ear when he left service (contrary to the medical evidence of record), he subsequently reported that he first began having difficulty hearing between 1992 and 1994.  Specifically, in an October 2004 VA treatment visit, he reported his hearing difficulties began in approximately 1992 or 1993.  At his August 2005 VA examination, he reported bilateral hearing difficulties since 1992.  At his January 2012 VA examination, he said he began noticing hearing difficulties in 1993 or 1994.  At his January 2008 Board hearing, he indicated that his hearing began being a problem at work around 1993 or 1994. 

In addition, the Board finds that the Veteran's more recently-reported history of hearing loss since active service is inconsistent with the other lay and medical evidence of record.  Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of symptoms of hearing loss.  

As noted above, the service separation examination report reflects that the Veteran was examined and his hearing was found to be clinically normal.  His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later).  

Moreover, the post-service medical evidence does not reflect complaints or treatment related to hearing loss for many years following active service.  Even assuming that the September 1993 audiogram suggested that hearing loss was present, the multi-year gap between discharge from active duty service (1982) and initial evidence of hearing loss more than 10 years later weighs against the claim.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability); see Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder).

The Board acknowledges that the Veteran is competent to give evidence about the symptoms he experienced.   See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, in the present case, continuity of symptomatology is not established.   Although the Veteran indicated in his claim and other statements in support of his claim that his hearing problems began in service, he has consistently reported in treatment records, at VA examinations, and at his Board hearing that he began noticing hearing difficulties between 1992 and 1994.

The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, and his own previous histories of onset of symptoms given after service.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptomatology.  

Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints.  In this case, the evidence is in conflict as to the etiology of the Veteran's hearing loss.

Where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

The Veteran underwent a VA audio examination in August 2005.  While no opinion was rendered as to the etiology of hearing loss, the Veteran reported a positive family history of hearing loss with his mother and brother both having cochlear implants.  In a February 2006 addendum opinion, the examiner, a certified clinical audiologist, reviewed the claims file and opined that hearing loss was not incurred in or aggravated by service, nor was it manifest to a compensable degree within one year following discharge from service.  

The rationale was that induction, interim, and discharge audiometric data was normal and the Veteran reported gradual hearing loss in 2001, almost 20 years after discharge.  The examiner also noted that the Veteran reported a family history of hearing loss.  It was not clear whether the examiner considered the Veteran's lay statements of hearing loss since service.

The Veteran underwent another VA audio examination in June 2007.  He reported a history of in-service noise exposure.  After a review of the claims file and audiometric testing, the examiner diagnosed sensorineural hearing loss but rendered no opinion as to etiology.  In an August 2007 addendum, the examiner opined that because normal hearing was presented at induction and at discharge, and there were no complaints of hearing loss in the service treatment records, hearing loss was not due to service. 

The Board places greater weight on this examination because the examiner clearly considered the Veteran's statements that he experienced noise exposure in-service and his claim of hearing loss since service.  Nonetheless, the examiner found that hearing was normal at 6 difference times during service, including at separation, that the Veteran had a multi-generational family history of hearing loss, and the onset of hearing loss occurred many years after service and was not due to service.

The Veteran underwent another VA examination in January 2012.  After performing testing, the examiner, an audiologist, stated that communication with the Veteran was not consistent with the severity of hearing loss presented and the results were not valid for rating purposes.

As to etiology, the examiner opined that the Veteran's hearing loss was not as least as likely as not caused by his service.  She noted that his discharge examination in July 1982 indicated normal hearing bilaterally, as did his July 1980 audiological examination, despite the fact that he complained of hearing loss on that date.  The examinations also did not show significant changes compared to his enlistment examination.  

Significantly, the examiner explained that the Institute of Medicine has concluded that there is no basis for concluding that current hearing loss is related to service if hearing was normal at discharge and there were no significant threshold changes since those are thought to occur immediately after exposure.

The examiner further stated that the Veteran reported he began noticing his hearing difficulties in 1993 to 1994, more than 10 years after service.  The examiner explained that an Institute of Medicine study found no evidence to support the premise that a service member who had normal hearing at separation could develop hearing loss later that was causally related to noise injury in service.  The examiner further noted that post-service hearing evaluations from 1988 to 1993 showed fluctuating hearing loss, particularly at 6000 and 8000 Hz bilaterally.  Also, in September 1990, hearing was found normal though 6000 Hz bilaterally.  

The examiner also noted that the Veteran had reported occupational noise exposure at a September 2001 VA medical appointment.  Finally, the examiner opined that the Veteran's progression of hearing loss is more consistent with his family history of hearing loss, which includes his mother and brother having cochlear implants and his aunt and grandmother having significant hearing loss.

The Board finds that the examination was adequate for evaluation purposes and places high probative value on this evidence.  Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted an examination.  There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact.  

Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion.  Of note, this examiner cited to specific medical evidence supporting her conclusion that the Veteran's hearing loss was not related to service and provided a strong rationale.  Therefore, the Board finds this evidence strongly weighs against the claim.

On the other hand, the Veteran submitted two private medical examinations in support of his claim.  In September 2011, he underwent a neurologic consultation by private physician's assistant (PA).  Although the PA opined that the noisy environment in which the Veteran worked in service "certainly could be responsible for his bilateral hearing loss," less probative weight is given to his opinion as he also stated that the Veteran reported having a significant hearing deficit at the time he was discharged from the Navy.  

As the evidence failed to show a hearing deficit at discharge, the PA's opinion is based on an incorrect factual premises and is assigned little probative value.  See Reonal v. Brown, 5 Vet. App. 458 (1993) (an opinion based upon an inaccurate factual premise had no probative value).  Further, the Board finds the opinion is speculative.  See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (indicating that a doctor's opinion was too speculative when stating a disability "may be" related to service because this also was tantamount to saying the disability "may not be" related to service).

The Veteran also submitted a December 2007 opinion by Dr. B who concluded that the Veteran's audiological problems were due to his experience with loud noise in service.  He indicated that he had reviewed the claim's file and interviewed the Veteran but not examined him.  Dr. B explained that the Veteran's hearing tests in service showed early high frequency hearing loss and his current hearing loss was out of proportion to his age.  Further, he stated that the Veteran did not have other risk factors for his hearing loss or post-service exposure to loud noise.

Although Dr. B. emphasized that the VA examinations were conducted by "non-physicians," the Board notes that the opinions obtained from VA were completed by certified audiologists as required by the regulations.  The Board further notes that Dr. B is a Board-certified radiologist whose curriculum vitae indicates no specific experience in audiology.

The Board ultimately finds the opinions of the VA examiners, specifically the January 2012 VA examiner, are more probative than the opinion by Dr. B with respect to the Veteran's claim for hearing loss.  While Dr. B provided evidence that the Veteran's threshold shift for pure tones as a function of age was above average, he also stated that the Veteran has no other risk factors for hearing loss or post-service exposure to loud noise.  However, the January 2012 VA examiner found two factors relevant to the progression of the Veteran's hearing loss not addressed by Dr. B.  

First, the examiner noted that although the Veteran denied  post-service occupational noise exposure at the examination, he had previously reported occasional occupational noise exposure at a September 2001 VA medical note.  Second, the VA examiner pointed to the Veteran's reports of a family history of hearing loss, including the need for cochlear implants in both his mother and brother.  Neither of these were considered by Dr. B in rendering his opinion.

Next, Dr. B contends that the Veteran's service hearing tests show early high frequency hearing loss; however, for VA compensation purposes, in-service hearing was normal as no decibels were over 20.  Therefore, in-service testing failed to show hearing loss for VA purposes.  Therefore, the evidence does not support Dr. B's conclusion.  Moreover, he does not explain the nearly 20 year gap between the Veteran's discharge from service and his first diagnosis of sensorineural hearing loss, particularly in light of the 5 years of normal audiograms after discharge.  

The January 2012 VA examiner, however, addresses the gap, and states that an Institute of Medicine study found no evidence to support the premise that a service member who had normal hearing at separation could develop hearing loss later that was causally related to noise injury in service.  This opinion takes into account the post-service normal audiograms.

The Board has further considered the Veteran's assertions that his currently-diagnosed bilateral hearing loss is related to his service.  The Board finds that he is competent to report difficulty hearing because it requires only personal knowledge as it comes through the senses and is thus capable of lay observation.  Layno, 6 Vet. App. at 470.  However, hearing loss is not the type of disorder for which lay persons can provide competent evidence of questions of etiology or diagnosis.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  Therefore, the Board finds the Veteran's opinion as to the etiology of his hearing loss has little probative weight.

The Board gives significant probative weight to the clinical findings, which demonstrate normal hearing in service, normal hearing for a 5 year period after service, and no diagnosis of hearing loss for nearly two decades after service.  The Board has considered the medical opinions offered, including the private opinions submitted by the Veteran; however, the Board finds the opinion of the January 2012 VA examiner most probative as it accurately considers the facts and circumstances of the Veteran's hearing loss.  Therefore, the weight of evidence does not support a nexus between service and hearing loss.

The Board has also considered whether presumptive service connection for chronic disease is warranted in the instant case.  Service connection for an organic disease of the nervous system may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

The evidence in this case does not show that the Veteran's sensorineural hearing loss manifested to a compensable degree within one year following separation from service.  Significantly, post-service testing specifically showed normal hearing for a 5 year span between 1988 and 1993 (6 to 11 years post-discharge).  As noted above, he was not diagnosed with hearing loss for nearly 2 decades after discharge.  Therefore, hearing loss was not manifested to a compensable degree within one year of separation and the presumption is not applicable.

In sum, while current hearing loss is shown, service treatment records do not reflect in-service incurrence and post-service evidence does not show compensable hearing loss within one year or support continuity of symptomatology or nexus.  The preponderance of the evidence is against the claim and the benefit of the doubt rule does not apply.  Therefore, the appeal is denied.  

Service Connection for a Low Back Disorder

A veteran who served after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. §§ 1111, 1132.  Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b).  History provided by a veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition.  38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).  

When no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry, and the presumption of soundness arises.  The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that a veteran's disability was both preexisting and not aggravated by service.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof."  38 C.F.R. § 3.304(b)(1).

In this case, in his April 1976 Report of Medical History, the Veteran reported a history of recurrent back pain, and the examiner noted he had suffered a back strain.  However, the examiner found the Veteran's spine normal on examination, so the presumption of soundness attaches.

An August 1976 Report of Medical History noted the Veteran's report of a low back strain four years prior resulting in mild occasional pain.  In February 1977, a history of low back sprain was also noted.  His spine was found normal on both examinations, as well as one in July 1980, when he again reported a history of recurrent back pain.  In July 1982, he checked that he did not have a history of recurrent back pain.  Therefore, the medical evidence does not show that he sustained a low back injury or disease during service.

Post service evidence reflects that two years after discharge, a May 1984 X-ray showed low back pathology described as:

sacralization of L5 with pseudoarticulations of the transverse processes bilateral to the sacrum.  There are bilateral pars defects of L4 with about 5 mm. or 10% anterior slippage of L4 over 5 and some mild degenerative disc disease at that level in association.  

The X-ray was done as part of a routine summer employment physical and as a result of it the Veteran was only allowed to perform light physical labor.  Although shortly after the X-ray he filed a VA compensation claim for his back that was administratively dismissed due to his failure to respond to the RO, records do not indicate he sought any medical treatment for his back until September 1991.  

At that time he reported he had low back pain with radiation into his right hip and sometimes down into his leg.  He reported the pain had been present since the summer of 1989 and he had a history of back problems since high school.  An MRI and CT scan showed spondylolisthesis at L4-5 as well as spondylolysis.  Ultimately, the Veteran underwent a lumbar laminectomy in December 1991.

In February 2009 a medical advisory (VHA) opinion was provided by an orthopedic physician.  The physician, Dr. M, stated that the sacralization of L5 identified in the Veteran's May 1984 X-ray was a congenital anomaly.  He stated that the movement normally at L5-S1 physiologically shifted to L4-5 and the spondylolysis L4 pars defect also noted on the x-ray occurred as a result of the concomitant congenital anomaly.  Dr. M stated that the back pain the Veteran reported as an adolescent was the onset of the spondylolysis becoming symptomatic and therefore the L4 spondylolysis existed prior to the Veteran entering service.

In July 2011, a second VHA opinion was provided by a different doctor, Dr. DM. Dr. DM opined that prior to the Veteran's entry into service the objective evidence did not show he was suffering from a clinically identifiable chronic low back disorder.  He stated that the "lumbar strain" the Veteran had been described as having prior to service could have been pain that was primarily discogenic in nature, muscular in nature, or related to a previously undiagnosed pars intraarticularis fracture.  

Dr. DM agreed that due to the congenital finding of sacralization of the L5 vertebra, there were likely additional stresses shifted to the L4-L5 level where a spondylolysis/pars defect was more likely to occur.  However, Dr. DM stated that it was impossible to determine whether the pars defect occurred prior to, during, or after service.

In support of his claim, the Veteran submitted a December 2007 private opinion from Dr. B, a Board-certified radiologist, who did not examine the Veteran, but did review his claims file and interview him on the phone.  Dr. B noted that the Veteran was not given a definitive diagnosis with regard to his back prior to service, suggesting his disorder could have been a self-limiting condition such as muscle strain, and that he entered service with a normal spine examination and no evidence of spondylolysis.

Based on the foregoing, the evidence shows that the Veteran has sacralization of the L5 vertebra, a congenital defect, which by definition pre-existed service.  However, the VA has not shown by clear and unmistakable evidence that spondylolysis pre-existed service.  Although Dr. M opined that he believed the Veteran's spondylolysis had its onset when the Veteran was a teenager based on pain he reported at that time, Dr. DM opined that it was not possible to determine the time of onset and the pre-service "lumbar strain" cited by Dr. M could have had a different cause.  

Considering the lack of objective medical evidence from prior to the Veteran's service and the conflicting medical opinions, the Board finds it is not shown by clear and unmistakable evidence that the Veteran's spondylolysis or any other back disorder, other than the congenital sacralization of the L5 vertebra, pre-existed service.

A congenital or developmental defect is not considered a disease or injury for VA purposes.  See 38 C.F.R. §§ 3.303(c), 4.9 (2012).  Therefore, a congenital defect, as distinguished from a disease, generally may not be service-connected as a matter of law.  Further, the general presumption of soundness upon entry into service, as set forth in 38 C.F.R. § 3.304(b) (2012), does not apply to congenital defects.  However, service connection may be granted if a congenital defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability.  See 38 U.S.C.A. §§ 1110, 1111 (West 2002); VAOPGCPREC 82-90 (July 18, 1990); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996). 

A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability was due to the natural progression of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  

Aggravation of a preexisting condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by § 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).

The Veteran underwent VA examinations in August 2005 and June 2007.  In August 2005, the examiner diagnosed degenerative joint disease of the lumbar spine, status/post laminectomy.  An x-ray showed a persistent grade 2 L4 on L5 anterolisthesis, minimal grade 1 L5 on S1 retrolisthesis, and disc narrowing across the stabilized levels. 

The June 2007 examiner stated that the Veteran had long-lived low back pain with no discrete injury leading to worsening while in service.  He opined that the Veteran's back pain was due to strain, with his spondylolisthesis possibly playing a part.  An x-ray showed the Veteran was status/post posterior fusion and instrumentation with placement of posterior plates and bilateral pedicle screws extending from L4 through S1, 1.8 cm anterolisthesis of 14 with respect to L5, and multi-level degenerative disc disease.  

Dr. B opined that the Veteran's primary problem was his service-induced bilateral pars fractures with spondylolisthesis.  Dr. B reviewed the findings of the Veteran's 1984 x-ray as including bilateral pars defects/fractures (spondylolysis) and anterior slippage of L4 over L5 (spondylolisthesis) and some degenerative disc disease.  Dr. B stated that the type of degenerative changes experienced by the Veteran take more than two years to develop and are common after pars defects; therefore, he concluded that it was likely that the Veteran developed the degenerative changes and fractures while in service two to eight years prior.  Dr. B further stated that the Veteran's record did not contain a more likely etiology for the spine problems shown by his 1984 X-ray, taken two years following service.

Dr. B also noted support in the medical literature of an association between spine injuries early in life and the development later in life of advanced degenerative changes.  Dr. B did not address the Veteran's congenital sacralization of the L5 vertebra and any potential impact on current back disability as discussed by the two VHA opinions.

Based on his opinion that the Veteran's L4 spondylolysis existed prior to service, Dr. M opined that because no back injury was reported during service, the Veteran's L4 spondylolysis with L4-5 listhesis was not service-connected.

Dr. DM opined that it was more likely that the Veteran had chronic pars intraarticularis fractures and spondylolistheis, a degenerative condition that slowly progressed over time though its natural course, than that the Veteran's spondylolisthesis was caused by service.  He also stated that there was no objective evidence that the Veteran's chronic pars intraarticularis fractures and spondylolisthesis were exacerbated in service.  

In September 2011 the Veteran was examined by a private PA.  The PA stated that it was "difficult" to directly link the Veteran's back pain and disc degeneration to his service, but that the activities he would have been required to perform in service could result in strain on the back.  The Board gives the PA's opinion little probative weight as it is both speculative and suggests a connection only between the Veteran's service and back strain, without discussion of the Veteran's X-ray findings.

The Board also assigns Dr. B's opinion less probative weight as his contention is that the Veteran's current back disability is secondary to problems he had with his back in service.  However, the service treatment records contain no complaints of or treatment for back pain occurring service.  The only mention of back pain in the Veteran's records are his medical history evaluations in which he merely related that he had a history of recurrent back pain.  Notations on the forms further reflect that he reported he had suffered a back strain prior to service, but do not suggest a report of current pain or injury in service.   Of note, his spine was found normal in five medical examinations from entrance into to discharge from service.

Further, to the extent that Dr. B relies on medical literature that he describes as supporting an association between injury early in life and the development of degenerative changes later in life, the Board finds Dr. B's opinion does not support the Veteran's claim as the evidence does not show that the Veteran suffered an injury either prior to (entered service sound) or in service.  Because Dr. B.'s opinions are premised on in-service back complaints and/or injuries that are not shown by the record, the Board finds that the reasoning of the VHA opinions are more consistent with the evidence of record.  

Further, the Board notes that the Veteran was not diagnosed with bilateral pars defects and mild degenerative disc disease until two years after he left service, and the 1984 x-ray was done as part of an employment physical rather than due to complaint by the Veteran of back pain.  He sought no medical treatment for his back condition for another seven years, suggesting that despite the x-ray findings, he did not actually experience symptomatology related to his back until many years after service.  When he did seek treatment in 1991, he reported the onset of pain was 1989, approximately seven years after service.

While the Board acknowledges the Veteran's statements and those of his fellow service members describing the nature of their work as involving moving heavy objects and bending at awkward angles and finds the descriptions to be competent and credible, the Board finds the evidence does not support that those movements caused the Veteran's current back disability.  Further, although he is competent to report symptoms including back pain, he is not competent to opine as to the etiology of spondylolysis/pars defect and degenerative disc disease, as it is not capable of lay observation.

As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the appeal is denied.  

Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a  supplemental statement of the case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in May 2005 and August 2007.  In the pre-adjudication May 2005 letter, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection and of his and VA's respective duties for obtaining evidence.  In the August 2007 letter the RO provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established.  Therefore, the duty to notify has been met.

Next, VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  

The Board finds that all necessary development has been accomplished.  The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran.  Pursuant to the Board's January 2013 remand, the RO attempted to obtain VA treatment records from prior to 2001; however, in a January 2013 letter he stated that no such records exist.  He also submitted a number of personal statements as well as statements from two fellow service members.  Neither he nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  

In addition, VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).  The Veteran was afforded VA medical examinations for his back and hearing in August 2005 and June 2007 and another examination for his hearing in January 2012.  The examiners, medical professionals, obtained an accurate history, considered the Veteran's assertions, and performed an examination and necessary testing.  

VHA opinions were also obtained with regard to the his back disability in February 2009 and July 2011 in which the medical experts reviewed the claims file and rendered opinions.  The Board finds that the examinations and opinions provided were adequate and contain sufficient information to decide the issues on appeal.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183.


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for low back disability is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs