Citation Nr: 1551095 Decision Date: 12/07/15 Archive Date: 12/16/15 DOCKET NO. 12-26 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left ear hearing loss disability. 3. Entitlement to service connection for a right ear hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service from October 1974 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2015, the Veteran was afforded a travel board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The Veteran's records are now encompassed completely in Virtual VA and Veterans Benefits Management System (VBMS) electronic folders. FINDINGS OF FACT 1. Lumbar degenerative disc disease with mechanical low back pain is as likely as not attributable to service. 2. A left ear hearing loss disability is as likely as not attributable to service. 3. A right ear hearing loss disability is not shown by the record. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, lumbar degenerative disc disease with mechanical low back pain is due to service. 38 U.S.C.A. §§ 1110, 5103 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2015). 2. With resolution of reasonable doubt in the Veteran's favor, a left ear hearing loss disability is due to service. 38 U.S.C.A. §§ 1110, 5103 5103A, 5107(b); 38 C.F.R. § 3.303, 3.385. 3. A right ear hearing loss disability was not incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in August 2009, VA advised the Veteran of the information and evidence needed to substantiate the claims. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records/VA examinations, and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). ANALYSIS The Veteran appeals the denial of service connection for a bilateral hearing loss disability and low back disability. He argues that he served in the Air Force for over 18 years and was exposed to military aircrafts during that time. He also claims that he had low back pain during service which continues to trouble him. According to the Veteran, handling heavy hoses during refueling, pulling the hoses and climbing the tanks put a lot of stress on his back. He claims that his back problems started in 1979/1980. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis and sensorineural hearing loss, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. After weighing the evidence, the Board finds in favor of the Veteran's claims for service connection for a low back disability and a left ear hearing loss disability. To that end, the Veteran has been diagnosed with lumbar degenerative disc disease with mechanical low back pain and a left ear hearing loss disability according to VA regulations has been shown by the record. Service treatment records reveal a February 1979 notation of non-disabling low back pain at times, etiology unknown. In May 1983, a showing of a back injury at the ballpark was documented. The Veteran was placed on profile for seven days which included no heavy lifting. He reported recurrent back pain in January 1984 and during other service evaluations. In October 1993, months before separation, the Veteran reported hearing loss and difficulty hearing in noisy rooms. He was unsure as to whether his hearing was getting worse at that time but reported that one hear was better than the other. The Veteran has presented lay evidence of in service back problems and hearing loss. He is competent to report such problems and the circumstances surrounding such. Layno v. Brown, 6 Vet. App. 465 (1994). He has also presented credible statements to include testimony that his problems manifested in service and has continued since that time. The Board is mindful that the March 2010 VA examiner opined that the Veteran's hearing loss was less likely as not (50/50 probability) caused by or a result of noise trauma in service. The VA examiner stated that the separation audiogram indicated normal hearing bilaterally and that the Institute of Medicine found there was no sufficient scientific basis for the existence of delayed onset hearing loss. The May 2015 VA examiner further opined that the Veteran's mechanical low back pain was not caused by or a result of activities performed in service. The VA examiner stated that the Veteran's current lumbar disc disease is an expected aging outcome unrelated to his lumbar strain while in service. According to the VA examiner, his opinion was based on current orthopedic literature of normal expected aging outcomes. In a September 2015 opinion, however, Dr. S noted that the Veteran had been his patient since April 2010. Dr. S stated that MRIs found significant damage to the Veteran's lower back and that he complained that this condition started after he was assigned masonry duties at the age of 40 while in service. According to Dr. S, musculoskeletal disorders such as chronic back pain often take time to develop especially in masonry workers. Dr. S opined that the Veteran's lower back problems may have very well initially developed from this type of work even though it happened quite a few years ago. He noted that the Veteran may be limited to the type of work that he can perform due to his medical problem that may have very well developed while serving in service and became worse over the years. According to Dr. S, the initial problem may very well have developed from lifting blocks above his shoulders as a mason. Here, the Board has been presented with conflicting evidence regarding the etiology of the Veteran's disabilities. The Board notes, however, that the Veteran has over 18 years of service. Although his disabilities were not formally diagnosed in service, he complained of back pain and reported hearing loss in service. His statements in conjunction with the opinion from Dr. S are persuasive. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, resolving reasonable doubt in his favor, service connection for lumbar degenerative disc disease with mechanical low back pain and left ear hearing loss disability is granted. The Board, however, finds against the claim for service connection for a right ear hearing loss disability. To that end, in this case, basic entitlement to disability compensation derives from 38 U.S.C.A. § 1131. The statute provides for compensation, beginning with the words: "For disability resulting from personal injury suffered of disease contracted in the line of duty. . . ." 38 U.S.C.A. § 1131. Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, the Veteran must prove the existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, there is no credible showing of a right ear hearing loss disability for VA purposes at the time of filing or anytime during this appeal. In this regard, the evidence is devoid of a showing of auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 26 decibels or greater; or speech recognition score using the Maryland CNC Test shown to be less than 94 percent for the right ear. See 38 C.F.R. § 3.385. While the Veteran complains of loss of hearing, the March 2010 VA examination disclosed essentially normal hearing and speech recognition score of 96 percent for the right ear. Implicit in the claim is the Veteran's belief that he has a right ear hearing loss disability. The Board notes, however, that a right ear hearing loss disability as defined by VA regulations has not been shown by the service treatment records, VA medical records and examinations, and/or private medical records. The existence of a hearing loss disability is determined by very specific testing. The VA examination discloses hearing acuity that does not reach the level of disability for the right ear. Accordingly, service connection for a right ear hearing loss disability is denied. ORDER Entitlement to service connection for lumbar degenerative disc disease with mechanical low back pain is granted. Entitlement to service connection for a left ear hearing loss disability is granted. Entitlement to service connection for a right ear hearing loss disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs