Citation Nr: 1340288 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 11-01 687 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served in the Army National Guard for many years, which included active duty for training (ACDUTRA) from January to May 1975 and in September 2005, and periods of active duty from August 2002 to January 2004 and September to October 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the RO. In September 2009, the Veteran testified at a local hearing before a Decision Review Officer (DRO) and in August 2012, he testified at a Travel Board hearing before the undersigned; transcripts of these hearings are in the file. FINDING OF FACT The Veteran's current right hip disorder, low back disorder, and left ear hearing loss are as likely as not related to his military service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, a right hip disorder was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. By extending the benefit of the doubt to the Veteran, a low back disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 3. By extending the benefit of the doubt to the Veteran, a left ear hearing loss disability was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Since the matters on appeal are granted in full in the decision below, it is unnecessary to discuss whether there was VCAA compliance as any inadequacy is considered non-prejudicial. Legal Criteria and Analysis Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the claimed disability or, at the very least, showing she has at some point since the filing of her claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain diseases, including arthritis, are considered chronic and, therefore, will be presumed to have been incurred in service if manifested to a compensable degree within one year following separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). If chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997). The Board may also consider the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Macarubbo v. Gober, 10 Vet. App. 388 (1997). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Right Hip and Low Back The Veteran contends his current right hip and low back disorders are related to injuries he incurred in service. The record contains documentation in service of injuries and complaints involving the right hip and low back. While on ACDUTRA in February 1977, the Veteran was shown to have injured his back and right hip in a jeep accident in which he was thrown from the vehicle. Although lumbar X-rays were negative, the records show that he continued to have persistent low back complaints in March 1977. March 2010 and February 2011 X-rays show the Veteran has osteoarthritis in the right hip. He is also shown to have had disc fusion at L4-L5, lumbar spondylosis, and degenerative disc disease. See June 2008 VA examination report and February 2011 X-rays. Although there is no medical nexus opinion that links these disorders to service, the Board finds that service connection may nevertheless be granted on the basis of continuing symptomatology after service for a chronic disorder as an alternate means for establishing service connection. As explained by the Federal Circuit Court in Walker, continuity of symptomatology under 38 C.F.R. § 3.303(b) satisfies the required nexus or linkage between current disability and service, but is only applicable with conditions identified as "chronic" under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). As noted, the Veteran has a diagnosis of right hip and low back arthritis, which is a chronic disorder. The Veteran testified to having continuing back and hip pain after the jeep accident in service and then months later he had surgery in 1977, which improved his back pain. He also had continuing right hip pain but did not seek treatment. He later began having additional back and hip pain after active duty after Hurricane Katrina due to heavy lifting. See September 2009 hearing transcript. As to the Veteran's reports of continuing lumbar and right hip pain, he is competent to testify as to injuries and symptoms. Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). In light of his injuries, complaints, and no evidence of intercurrent injuries, his testimony regarding continuing symptoms is credible. See Barr, supra. Since the Veteran provided credible and probative evidence of continuing low and right hip pain, and now he is shown to also have lumbar and right hip arthritis, these disorders are presumed to be related to service. Based on the record, the Board also finds that the Veteran's disc fusion is as least as likely as not related to the initial back injury during service in February 1977. There is conflicting evidence as to whether this surgery occurred during the 1977 to 1978 time frame or 1982 to 1983 time frame. See August 2002 and November 2003 service records, February 2010 treatment record, and September 2009 and August 2012 hearing testimony. Unfortunately, the medical records are not available and the dates shown are based on different histories gleaned from the record. In situations, as here, when the evidence is in equipoise, the Veteran is afforded the benefit-of-the-doubt; therefore, the lumbar disc fusion is found to have occurred shortly after the Veteran completed his ACDUTRA. Since the Veteran is not shown to have had any intercurrent injury between the in-service injury and the disc fusion and the surgery occurred within a year of the injury, the disc fusion is as least as likely as not related to service. The Board acknowledges the record also contains VA examination opinions in May 2008 and March 2010 that are against the claims. However, these opinions are not highly probative because they do not consider the Veteran's reported history of continuing symptoms, which the Board found credible. Therefore, for the reasons stated, service connection is granted for the Veteran's low back and right hip disorders. B. Left Ear Hearing Loss The Veteran contends his left ear hearing loss is related to noise exposure during his military service. The record shows the Veteran had left ear hearing loss within 1 year of the period of active duty that ended October 2005. In this regard, an August 2006 service treatment record includes an audiological evaluation in which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT / / / / / LEFT 40 25 35 35 30 Moreover, a September 2006 Medical Evaluation Board (MEB) contains a diagnosis of left ear hearing loss that was incurred while entitled to base pay and not existing prior to service. While MED determination is not determinative in deciding the claim, it is followed by a May 2008 VA examination report in which the examiner also opined it is at least as likely as not that the Veteran's left ear hearing loss had its origin during his military service based on the Veteran's military occupational specialty, reported military noise exposure, and documented hearing loss on his separation examination. This opinion is highly probative, is not refuted by contrary evidence, and is consistent with the Veteran's service records. Accordingly, service connection for left ear hearing loss is granted. ORDER Service connection for a right hip disorder is granted. Service connection for a low back disorder is granted. Service connection for left ear hearing loss is granted. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs