Citation Nr: 1334397 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-01 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to May 1962. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Subsequent to the Board's February 2013 remand for a hearing to be scheduled, in June 2013, the Veteran testified during a Video Conference hearing before the undersigned. The record was held open for 60 days following the hearing to provide the Veteran with additional time and opportunity to submit medical evidence. Additional evidence was received from the Veteran in August 2013 and accompanied by a waiver of his right to initial RO consideration of the evidence. 38 C.F.R. §§ 19.9, 20.1304(c) (2013). The issue of entitlement to service connection for tinnitus has been raised by the record, specifically by a June 2013 private medical opinion, 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. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The record contains competent medical and lay evidence indicating that the Veteran has a bilateral hearing loss disability according to VA standards, which is causally related to his military service. 2. The record contains competent medical and lay evidence indicating that the Veteran has a lumbar spine disability, diagnosed as degenerative disc disease of the lumbar spine, which is causally related to his military service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred in active military service and service connection for this disability is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for service connection for a lumbar spine disability, diagnosed as degenerative disc disease of the lumbar spine, have been met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In view of the favorable disposition below, the Board finds that any possible errors on the part of VA in fulfilling its duties under the VCAA with respect to the Veteran's claims are rendered moot. II. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence of record shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, application of 38 C.F.R. § 3.303(b) is only triggered if the disability in question is one that is listed as a chronic disability under 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases, including sensorineural hearing loss and arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). If a chronic disease is noted during service (or within the applicable presumptive period under 38 C.F.R. § 3.307), subsequent manifestations of the same disease at any later date, however remote, will be service connected, unless clearly attributable to intercurrent causes. However, where a condition is noted during service (or within the applicable presumptive period) but is not chronic, service connection may be granted only where there is evidence of continuity of symptomatology after separation from service. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record. See 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"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). 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). A. Lumbar Spine The Veteran contends that he has a lumbar spine disability related to his service. Specifically, he contends that he injured his low back during service while lifting ammunition for use in the indoor range and that he has had a continuity of symptomatology since 1962. The Veteran's STRs indicate treatment of a chronic lumbar spine disability. A June 1956 enlistment examination and an April 1959 re-enlistment examination indicate normal clinical evaluations of the spine. However, an August 1961 clinical note states that the Veteran injured his back many years ago and had occasional low back pain and radiation. The impression was lumbosacral strain. A September 1961 report indicates a complaint of lumbar pain and recurrent back pain for 6 or 7 years. The assessment was AP and lateral lumbosacral strain. A September 1961 clinical record sheet and physical profile report indicate a diagnosis of "lumbarsacral strain" and state that the Veteran was painting a floor at an indoor rifle range in August 1961 when he experienced low back pain. An October 1961 consultation sheet indicates recurrent lumbosacral back pain over the past 6 years aggravated by flexing twisting and lifting a heavy object. X-rays indicated spondylolisis at L-5. An October 1961 clinical note indicates temporary L-3 profile and a diagnosis of spondylolisthesis by X-ray. An April 1962 sick call report indicates a provisional diagnosis of spondylolisthesis, symptomatic. Spondylosis was documented on X-ray examination of the lumbar spine. The impression was spondylolysis L-5. An April 1962 REFRAD examination indicates a diagnosis of spondylolisthesis by X-ray on clinical evaluation of the spine. An April 1962 report of medical history indicates a permanent profile serial, L-3: spondylolysis, painful back. Private treatment records dated in May 1989 indicate an impression of spondylolisthesis L5 on X-ray examination. A January 1991 report indicates a 20-year history of intermittent back problems. A February 1991 record indicates an admission diagnosis of L5-S1 spondylolysis with spondylolisthesis at which time the Veteran presented with a 25-30 year history of low back pain. Radiographs showed Grade I L5-S1 spondylolisthesis with bilateral spondylolysis. The assessment was chronic back pain with long-standing spondylolisthesis and spondylolysis. In February 1991, a lumbar fusion was performed after which spondylolysis with Grade I spondylolisthesis was diagnosed. In September 2008, degenerative disk disease L3-L5 was diagnosed. On VA spine examination in March 2009, the Veteran presented with a history of back problems since the 1960s. He stated that during service he fell and hurt his back while loading ammunition. On examination, the examiner diagnosed DDD of the lumbar spine. The nurse practitioner opined that the Veteran's DDD of the lumbar spine is less likely as not caused by military service based on the rationale that there was no continuity of care from 1962 until 2008 and no evidence to support spondylolisthesis caused DDD to spine at different locations. In this regard, the examiner's opinion reflects no consideration of the lay history with regard to his lumbar spine disability. The Veteran is competent to report what he experienced during and after service. Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). As the examiner did not consider all of the Veteran's history or complaints, her negative opinion lacks probative value, and is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA. In this regard, the Board also accepts that the Veteran is competent to report a lumbar spine disability during and after his service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Furthermore, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). In the present case, the Board notes that there is no medical opinion in support of the Veteran's claim, but finds that the absence of a favorable medical nexus opinion is not fatal to the Veteran's claim for service connection for a lumbar spine disability. Here, the Veteran is competent to observe the presence of lumbar spine disability during and after his service and the Board finds his account of in-service onset of lumbar spine disability, to be probative evidence in support of his claim. Notably, the Veteran's lay history is supported by the STRs which clearly document treatment of a chronic lumbar spine disability during service, namely spondylolisthesis of the lumbar spine that based on other medical evidence of record is a type of DDD, and there is no evidence of an intercurrent cause for a lumbar spine disability since the Veteran's discharge from service. Finally, the March 2009 VA examiner diagnosed the Veteran with DDD of the lumbar spine which is a chronic disability of the lumbar spine. As noted above, if a chronic disease is noted during service (or within the applicable presumptive period under 38 C.F.R. § 3.307), subsequent manifestations of the same disease at any later date, however remote, will be service connected, unless clearly attributable to intercurrent causes (emphasis added). In summary, the Board, in reviewing the record in its entirety, finds that the lay and medical evidence has demonstrated that the Veteran's lumbar spine disability, diagnosed as degenerative disc disease of the lumbar spine, is etiologically related to his service. Accordingly, service connection for degenerative disc disease of the lumbar spine is warranted. The claim, therefore, is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). B. Bilateral Hearing Loss The Veteran contends that he has hearing loss due to running an indoor firing range from one and one-half to two years without the benefit of hearing protection. The Board finds that the medical evidence of record supports the Veteran's contention that he has a bilateral sensorineural hearing loss disability that is causally related to noise exposure he experienced in service. The Veteran reported a history of military noise exposure due to service, and the Veteran's DD Form 214 states that the Veteran's military occupational specialty (MOS) was light weapons infantryman. In the July 2009 rating decision on appeal, the RO noted a MOS of military policeman. Moreover, the STRs confirm that he was stationed at an indoor firing range for some portion of his service. See October 1961 clinical record sheet. As such, the Board finds that exposure to acoustic trauma in service is consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). Impaired hearing will be considered to be a disability 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 the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The STRs indicate that whisper voice testing on enlistment examination in June 1956 and re-enlistment examination in April 1959 revealed that hearing was 15/15 bilaterally. On audiological evaluation on REFRAD examination in April 1962, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 / 5 LEFT -5 0 10 / 0 In an October 2008 statement, the Veteran stated that he served 6 years with ASA as a MP and fired weapons and full-time for one and one-half years at Arlington Hall station as the indoor rifle pistol range NLO. He stated that he was exposed to almost constant gunfire 8 hours a day, 5 or 6 days a week without hearing protection. On VA audio examination in July 2009, the Veteran presented with complaints of difficulty hearing and provided a history of noise exposure during service as a range officer at an indoor range. He denied any occupational or recreational noise exposure. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 60 55 LEFT 10 20 25 45 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss that was normal to moderately severe (55-69HL) and opined that frequency-specific testing at discharge from service revealed normal hearing at all tested frequencies with no evidence of HF notching indicative of hearing changes at "d/r noise." The examiner cited to a report from the Institute of Medicine (IOM) which found that hearing loss related to noise does not enjoy a delay in onset nor does it progress once the source of that exposure is decreased. Therefore, as hearing was within normal limits with no notching at discharge, it is unlikely that noise exposure on active duty is the etiology of the Veteran's hearing loss. In this regard, the VA audiological examiner based the opinion, in part, on the absence of any hearing loss during the Veteran's service and did not provide any reason why the Veteran's in-service acoustic trauma was not a source of his current bilateral hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) ("[§ 3.385] operates to establish when a measured hearing loss is...a 'disability' for which compensation may be paid, provided that the requirements for service connection are otherwise met..."). Further, in Hensley, the Court indicated that a veteran need not have met the requirements of 38 C.F.R. § 3.385 while in service, only presently. Hensley, 5 Vet. App. at 158-59. See also, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The VA examiner's conclusory opinion based in part on the absence of documented hearing loss at discharge from service does not mean that there is no nexus between the Veteran's current hearing loss and his in-service noise exposure which lessens its probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that most of the probative value of a medical opinion comes from its reasoning). Additionally, the examiner has identified no other etiology for the Veteran's bilateral hearing loss. In a March 2010 statement, E.K., a former spouse of the Veteran's friend with whom he served, stated that during military police duty the Veteran was in charge of the Arlington Hall station rifle and pistol range where he was stationed for about two years during which weapons were fired from 8 to 10 hours a day, 40 or more hours a week. In August 2013, the Veteran submitted a statement from private ear, nose, and throat physician Dr. McMahon which indicates treatment since 1987 and a history of bilateral sensorineural hearing loss. The physician indicated that the Veteran has a history of in-service noise exposure and opined that it is "more likely than not the noise exposure [during service] has caused his high-frequency sensorineural loss." However, this opinion is unsupported by any audiological findings or rationale which lessens its probative value. Nonetheless, the Veteran consistently and credibly contended that in-service noise exposure caused his bilateral hearing loss and that it has been continuing to the present. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Board finds that the examiner's opinion regarding hearing loss was apparently based, in part, on an erroneous assumption that service connection for this condition required a documentary showing of hearing loss in service. Simply put, had the VA examiner known that such a documentary showing was not required, the Board believes that the VA examiner would have opined a relationship between hearing loss, and the Veteran's period of active service. In short, even without the supporting private opinion, the opinion of the VA examiner and the Veteran's statements as to his symptoms and experience support a finding of both chronicity and continuing disability. Consequently, the more probative, competent, and credible medical evidence of record supports the Veteran's claim. The evidence in this case is at least in equipoise with regard to the cause of the Veteran's current bilateral hearing loss. Accordingly, service connection is warranted for the Veteran's bilateral hearing loss disability. ORDER Service connection for bilateral hearing loss is granted. Service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs