Citation Nr: 1325112	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  08-06 156	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

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

2.  Entitlement to service connection for hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran, his former spouse, and his employer


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel

INTRODUCTION

The Veteran served on active duty from April 1975 through April 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, which among other issues, denied service connection for a bilateral hearing loss disability and declined to reopen a claim for service connection for a low back disorder.  A timely Notice of Disagreement (NOD) as to those issues was received from the Veteran in May 2006.  After a Statement of the Case (SOC) was issued in January 2008, the Veteran perfected his appeal as to those issues in February 2008, via VA Form 9 substantive appeal.

The Veteran, his former spouse, and former employer testified during an April 2008 Board hearing that was held at the Cheyenne RO.  The Veterans Law Judge who presided over that hearing is no longer employed by the Board.  A January 2013 letter provided the Veteran with notice to that effect and provided him an opportunity to request a new Board hearing before a current Board member pursuant to 38 U.S.C.A. § 7107(c) and 38 C.F.R. § 20.707.  In a February 2013 reply, the Veteran declined to schedule another hearing.

In April 2009, the Board determined that new and material evidence had been received to warrant reopening the Veteran's low back claim.  That issue and the Veteran's claim for service connection for hearing loss were remanded for further claims development, to include efforts to obtain additional records for treatment received by the Veteran at the VA Medical Center (VAMC) in Cheyenne from April 2008 through the present; arranging the Veteran to undergo a VA orthopedic examination of his spine and a VA audiological examination; and readjudicating the Veteran's claims.

In March 2013, the Board determined that the development actions directed in its April 2009 remand had not been performed fully.  Namely, efforts to schedule the Veteran for VA examinations of his spine and hearing loss had been unsuccessful because the Veteran was incarcerated.  Based upon information that the Veteran had been released from prison, the Board determined that VA was under a duty to reschedule the examinations.  The Board finds that the development requested in its March 2013 remand has been performed, and is prepared to proceed with its de novo consideration of this matter.

In July 2013, the Board received additional evidence from the Veteran.  Although this evidence was received without a waiver of review by the agency of original jurisdiction executed pursuant to 38 C.F.R. § 20.1304, the Board finds that this additional evidence is duplicative and cumulative of other evidence that was already of record.  As such, the Board has simply associated this evidence with the claims file.

This appeal also initially included the issue of entitlement to service connection for a right knee disability.  That claim, however, was denied by the Board in its April 2009 decision and remand.  Accordingly, that issue is not presently before the Board on appeal.

The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran sustained a low back injury during his active duty service.

2.  The Veteran has current thoracolumbar degenerative disc disease with deformities attributable to a fused spine at T10-11 that has resulted from the Veteran's in-service injury.

3.  The Veteran's bilateral sensorineural hearing loss did not begin during the Veteran's active duty service, manifest to any degree within one year from the Veteran's separation from active duty service, or result in any way from any injury sustained during the veteran's active duty service, to include acoustic trauma.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a low back disability have been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).
  
2.  The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011) and 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 evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. 

VA's notice requirements apply to all five elements of a service-connection claim:  veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  Notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In a January 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence were needed to substantiate his claims for service connection for a back condition and bilateral hearing loss, what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  The Veteran's claims were subsequently adjudicated for the first time in an April 2006 rating decision.  

Subsequently, an August 2007 letter also notified the Veteran as to the process by which disability ratings and effective dates are assigned, as well as the type of evidence that impacts those determinations.  After issuance of the August 2007 letter and opportunity for the Veteran to respond, the Veteran's claims for service connection for a low back disorder and bilateral hearing loss were subsequently readjudicated in a January 2008 SOC.  Hence, although full notice in accordance with the VCAA and Dingess was untimely, the Veteran is not shown to be prejudiced by the timing of this notice.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).

In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims.  The Veteran's service treatment records, service personnel records, claims submissions, lay statements, identified and relevant private treatment records, VA treatment records, and social security records have been associated with the record.  The Veteran was also afforded VA examinations for his back in April 2013 and for his hearing in May 2013.  These examinations, along with the other evidence of record, are fully adequate for the purposes of determining the nature, etiology, and severity of the disabilities adjudicated herein.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

II.  Service Connection

In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain listed chronic diseases, such as arthritis, may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service, if such disability became manifest to a compensable degree within one year of separation from active duty.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

While hearing loss disability is not a disease listed in 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection.  As discussed below, the Veteran's hearing loss disability has been described as sensorineural in nature; hence, the Board will consider whether service connection under the presumptive provisions contained in 38 C.F.R. §§ 3.307, 3.309 is warranted. 

An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  38 C.F.R. § 3.303(b).

Additionally, any disability which is proximately due to, or results from, another disease or injury for which service connection has already been granted shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service connected.

Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation.  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).

In addition to the foregoing general principles, service connection for hearing loss is not granted unless the claimed hearing loss is of a particular level of severity.  For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

A.  Low Back

The Veteran has alleged through his claims submissions, lay statements, and hearing testimony that he sustained a low back injury during his active duty service, sometime in 1978 or 1979, while attempting to move two metal wall lockers.  During his hearing, he elaborated that the lockers were each seven to eight feet high and three feet wide and that he was carrying them in tandem with four other people when he slipped and fell down an embankment.  According to the Veteran, the lockers fell on top of the Veteran and he was admitted immediately to sick bay for medical treatment.  The Veteran alleged further that he subsequently experienced ongoing back pain.

The Veteran's assertions are supported by a series of lay statements provided in 2006 and 2007 by the Veteran's former spouses, friends, and previous and current employers.  Collectively, these statements attest that they have observed the Veteran experiencing ongoing back pain that has limited his ability to participate in physical activities and to perform various occupational tasks.  These statements all attest that the Veteran had told them that he injured his back during active duty service and many indicate that the Veteran appeared to be "up front" in discussing his injury.  Although the Board notes that most of these individuals profess to have known the Veteran since the mid-1980s, well after the Veteran's separation form service, a letter from the Veteran's former spouse, C.P. states that she recalled the Veteran sustaining an injury in 1978 while "moving something heavy" while stationed at Kanoehe Bay, Hawaii, and that he subsequently complained of frequent back pain.  Somewhat consistent with the above assertions, service treatment records include a March 1979 record which shows that the Veteran was treated for complaints of chronic back pain that had reportedly been ongoing for two years.
 
Post-service treatment records show that the Veteran has received private and VA treatment for ongoing back pain since 1983.  Assorted private treatment records dated from 1983 through 1985 document the occurrence of two intervening post-service incidents which resulted in apparent aggravation of the Veteran's back.  In March 1983, he reportedly felt something give in his back after attempting to open the door on a semi-trailer.  In May 1985, he was treated for back pain that he experienced after attempting to lift a pallet.  Despite these intervening occurrences, however, during a November 1985 VA examination the Veteran reported that he had been experiencing constant back pain since his in-service injury.  An examination of the spine revealed some limitation of thoracolumbar motion.  The examiner diagnosed degenerative disc disease with residuals of chronic low back pain and loss of motion which he attributed to the Veteran's in-service injury in 1979.

Subsequent VA treatment records from February 2007 show that the Veteran continued to report low back pain.  X-rays at that time revealed abnormal appearance at the area of the T10-11 disc.  A follow-up examination in March 2007 revealed kyphoscoliosis.  X-rays taken at that time continued to indicate mild degenerative changes with continued question of a deformity at T10-11.  A CT study performed later that month revealed an abnormality described as a chronic appearing deformity at T10-11 that indicated a fused disc.  The study also revealed the presence of lateral osteophytes which were indicative of an acquired deformity.  An MRI performed in May 2007 revealed a mild kyphotic deformity at T10-11 with a fused disc that was interpreted as being from an old infection of an old trauma.  In a May 2007 note, the Veteran's treating VA physician opined that the Veteran's back pain was attributable to the in-service trauma.  During follow-up evaluation and treatment in June 2007, the Veteran's treating VA physician opined that the deformity in the Veteran's spine was the result of an old injury.  Specifically, the physician opined that the Veteran's back disorder was consistent with the Veteran's reported in-service injury.

In April 2013, the Veteran underwent a VA examination of his spine.  During the examination, the Veteran acknowledged the post-service incidents in 1983 and 1985, but reported again that prior to those occurrences he was experiencing ongoing but intermittent low back pain which stemmed from his in-service injury.  Regarding his current symptoms, he described constant pain in the middle and low back with flare-ups precipitated by twisting, bending, lifting, or carrying.

During the examination, demonstrated thoracolumbar motion included full flexion to 90 degrees; full extension to 30 degrees with pain was reported over the final five degrees of extension; lateral flexion to 20 degrees bilaterally with pain reported at the endpoints of motion; and lateral rotation to 25 degrees bilaterally with pain reported at the endpoints of motion.  The Veteran was tender to palpation over the thoracolumbar spine.  The examiner diagnosed mild degenerative joint disease of the thoracic and lumbar spine, but opined that it was less likely than not that it was incurred during active duty service, to include the reported in-service injury.  In discussion the opinion, the examiner cited the medical history discussed above and opined that there is a lack of consistent assessment, medical follow-up, and treatment modalities to identify the incident in 1978 as a chronic disorder.  Moreover, the examiner reasoned, the Veteran's post-service occupations, which included work as a laborer and roofer, were of a nature as to place him at a higher risk for back injuries.  Finally, the examiner also noted that the separation examination did not identify any back conditions, and, according to the record, it was not until 1983, when the Veteran sought treatment for back pain after opening a semi-trailer door, that the evidence identified a back condition.  Thus, the examiner determined, due to the lack of information and repeated injury after his discharge from service, it is less likely than not that the Veteran's current back condition was incurred in or was caused by his in-service injury.

The Board notes that the rationale for the VA examiner's negative opinion does not include consideration or discussion of the Veteran's reported history of pain dating back to his in-service injury or the multiple lay statements attesting as to the Veteran's ongoing back pain.  Similarly, the examiner does not address the assertions of the Veteran's former spouse, C.P., that the Veteran did experience ongoing back pain after his in-service injury.  Thus, to the extent that the examiner concluded that the record did not contain any information pertinent to ongoing symptoms since service, the examiner appears to omit from her discussion the probative and credible lay assertions of the Veteran and his former spouse.  In the absence of such a discussion, the Board assigns greater probative weight to the other evidence of record, to include the aforementioned lay assertions and the favorable nexus opinions provided in the November 1985 VA examination report and the earlier VA treatment records.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

In view of the foregoing, the Board finds that the evidence shows that it is at least as likely as not that the Veteran's thoracolumbar degenerative disc disease and deformity due to the fused disc at T10-11 resulted from the Veteran's in-service low back injury sustained in 1979.  Accordingly, the Veteran is entitled to service connection for a low back disability and this claim is granted.

B.  Hearing Loss

In relation to his claim for service connection for hearing loss, the Veteran has asserted in his claims submissions, lay statements, hearing testimony, and medical histories provided during examinations and treatment, that he has experienced hearing loss which he believes is attributable to noise exposure during his active duty service.  Specifically, he has alleged that he was assigned to perform clerical duties in an office that was located directly adjacent to the runway and flight line, and that during that time, he sustained acoustic trauma from jet engine noise of incoming and outgoing aircraft.  He also alleged that he was exposed to further jet engine noise while waiting on the flight line for "cattle cars" which transported him between his barracks and his office.  The Veteran has stated that he was not issued ear protection because he was not responsible for working outdoors and directly on the flight line.

During his April 2008 hearing, the Veteran testified that he began to notice his hearing loss during his active duty service and subsequently noticed progressive worsening, beginning in approximately 1980 or 1981.  A March 2007 statement from the Veteran's supervisor, S.D.B., attests that she has observed the Veteran experiencing hearing difficulties at work.  Specifically, she states that the Veteran demonstrated particular difficulty hearing during cell phone conversations.  She does not, however, indicate in her statement that she knew the Veteran during his active duty service or within a short time after his separation form service.  In that regard, she apparently is unable to provide any statements as to the state of the Veteran's hearing during service or within one year from his separation from service.

The evidence in this case shows that the Veteran has current sensorineural hearing loss in both ears which meets the minimum threshold to be considered a disability under 38 C.F.R. § 3.385.  In that regard, audiometric testing performed during June 2007 VA treatment revealed the following pure tones:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
25
25
70
LEFT
15
10
10
25
70

The foregoing audiometric results were interpreted as showing normal hearing through 3000 Hertz, sloping to severe hearing loss in both ears.

Audiometric testing performed during a May 2012 VA examination confirmed the presence of bilateral sensorineural hearing loss, manifested by speech recognition abilities of 88 percent in the right ear and 96 percent in the left ear, and the following pure tones:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
20
35
80
LEFT
15
10
5
30
70

In view of the foregoing, the disposition of the Veteran's hearing loss claim turns upon the question of whether the Veteran's current sensorineural hearing loss is related in any way to his active duty service, to include his alleged in-service acoustic trauma.

The service treatment records do not reflect any subjective complaints of acoustic trauma or hearing loss by the Veteran.  In that regard, Reports of Medical history completed by the Veteran during his April 1975 enlistment examination and his April 1979 separation examination reflect that the Veteran expressly denied having any history of hearing loss or other ear, nose, or throat trouble.  Similarly, there is no indication in the service treatment records of any objective findings that are indicative of decreased hearing over the course of the Veteran's active duty service.  In that regard, audiometric testing performed during the enlistment examination revealed the following pure tones:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
30
15
25
LEFT
15
5
10
15
20

By comparison, audiometric testing performed during the Veteran's separation examination did not indicate any appreciable pure tone changes, thus indicating that there was no appreciable change in the Veteran's hearing over the course of his active duty service.  Demonstrated pure tones from the separation examination are as follow:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
15
15
30
LEFT
20
X
10
10
25

Although, as noted above, the Veteran has alleged that he began to notice hearing loss during his active duty service, such assertions are effectively rebutted by the foregoing objective audiometric data and by the absence of any complaints of hearing loss during service.  Indeed, the Veteran's current assertion that he first noticed hearing loss during service are contradicted by the Veteran's Reports of Medical History, which show that he expressly denied having any hearing loss either at his enlistment or separation from service.

The Board also notes that there is no indication in the post-service treatment records that the Veteran reported, or sought treatment for, hearing loss at any time before June 2007.  Although the Board is mindful of the Veteran's hearing testimony that he initially sought evaluation and treatment for hearing loss at a VA medical facility in 1985 and was evaluated at a VA facility again in 1995, VA treatment records in the claims file, which date from 1985 through 2008, do not reflect any complaints or treatment related to hearing loss prior to the aforementioned June 2007 VA treatment.

After careful review and consideration of the evidence in this case, and even assuming that the Veteran sustained acoustic trauma during service while working in an office that was close to the flight line, the Board finds that the Veteran is not entitled to service connection for hearing loss.  In that regard, the evidence does not show that the Veteran's current sensorineural hearing loss was initially sustained during service, manifest within one year of his separation from service, or resulted from an event or injury that occurred during his active duty service.

In addressing lay evidence and determining what, if any, probative value may be assigned to it, the Board must consider elements of both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).

Here, the Veteran is competent to provide probative statements as to the onset and duration of his hearing loss.  See Barr, 21 Vet. App. at 308-09.  Nonetheless, to the extent that he has alleged that he experienced hearing loss during his active duty service, his assertions in that regard carry significant credibility concerns given the noted inconsistencies in the record.  As noted above, the Veteran expressly denied having any hearing loss during his enlistment and separation examinations.  Moreover, the service treatment records do not document any complaints related to hearing loss.  Given these inconsistencies, the Board finds that the Veteran's assertions concerning the onset and continuity of hearing loss are not credible, and hence, are not entitled to probative weight.  By contrast, the service treatment records do not reflect any irregularities or abnormalities that would indicate that the audiometric testing performed during the Veteran's enlistment and separation examinations are inaccurate or unreliable.  For this reason, the Board finds that the objective data expressed in the service treatment records are due far greater probative weight than the Veteran's assertions that he had hearing loss during service.  Since a comparison of the audiometric data taken during the enlistment and separation examinations do not indicate any gross auditory changes, the Board finds that the Veteran did not experience hearing loss during service.

Further, the evidence does not show that the Veteran's hearing loss was manifest within one year from his separation from service.  Other than the Veteran's unsubstantiated testimony that he was evaluated for hearing loss in 1985 and 1995, the complete VA treatment records, which date from 1985 through 2008, do not reflect such evaluations or treatment.  Indeed, there is no indication of any complaints or treatment in the VA treatment records relating to hearing loss prior to June 2007.  Certainly, the Board may expect that any evaluation or treatment related to reported hearing loss prior to June 2007 would be memorialized in the treatment records.  Moreover, there is no indication in the record that the assembled VA treatment records are incomplete.  Given the absence of any noted complaints or treatment pertaining to hearing loss before June 2007, there is simply no basis in the record for determining that the Veteran's hearing loss was manifest within one year from his separation from service in April 1979.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Finally, the evidence does not show that the Veteran's bilateral hearing loss is related in any way to the Veteran's active duty service, to include his claimed in-service acoustic trauma.  The only opinion in that regard that has been rendered by a medical professional is that expressed in the aforementioned May 2013 VA examination.  In that regard, the examiner concluded that it is less likely than not that the Veteran's sensorineural hearing loss was caused by or a result of his active duty service.  The examiner review the claims file in conjunction with the examination and noted that the Veteran's hearing loss did not pre-exist his enlistment into service.  The examiner also correctly noted that the separation examination did not reveal any disabling hearing loss.  Moreover, the examiner noted, there is no scientific basis for determining that hearing loss due to acoustic trauma may be delayed in onset.

As noted, the examiner's opinions are based upon an accurate review of the claims file which is consistent with the Board's own review of the record and understanding of the Veteran's medical history.  The examiner's diagnosis and opinion are based upon objective findings from the examination, and, there is no indication of any irregularities or abnormalities in the conduct of the examination such as to render the examiner's findings and opinions unreliable.  Moreover, the examiner cites the current state of scientific knowledge in determining that the Veteran's sensorineural hearing loss is not of delayed onset form his active duty service.  These opinions and findings are not rebutted by any contrary medical opinions.

As the weight of evidence is against the Veteran's claim for service connection for bilateral hearing loss, this claim must be denied.  In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is also inapplicable with respect to the Veteran's hearing loss claim. Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for a low back disability is denied.

Entitlement to service connection for hearing loss is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs