Citation Nr: 1706339 Decision Date: 03/02/17 Archive Date: 03/16/17 DOCKET NO. 12-02 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to service connection for a low back disorder, to include arthritis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1973. This matter is before the Board of Veteran's Appeals (Board) on appeal from March 2010 and April 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The issues of entitlement to service connection for bilateral hearing loss and service connection for bilateral tinnitus are addressed in the Remand portion of the decision below. FINDING OF FACT The Veteran's low back disability is not shown to be causally or etiologically related to an in-service event, injury or disease, or to have manifested in service or within the first post-service year. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran contends that his low back disability, to include arthritis is a result of his active service. Specifically, he contends that his symptoms have persisted since service and are a result of in service injuries. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. § 11101; 38 C.F.R. § 3.303 (a). Service connection for a chronic disease, including arthritis may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.303(d). The Veteran has stated his current symptoms are a result of in service injuries to his low back. The Veteran testified at a hearing before the Board in April 2012 that he experienced low back pain in service after two accidents while working with aircraft wheel rims and on the flight line working on a fuel tank. The Veteran reported experiencing ongoing low back pain after these in-service accidents, which has persisted since service. While the Veteran's statements are competent evidence to report his symptoms, his statements are not competent evidence to provide an opinion as to a medical nexus, as this determination requires specialized medical knowledge and training. The medical evidence of record reflects diagnoses of mild degenerative changes of the lumbar spine. The Veteran has consistently stated that he injured his back while working on the flight line on two instances. The Veteran testified at his hearing before the Board that he experienced low back pain and subsequently was seen and provided treatment in Kansas and again in Thailand. Service treatment records in March 1970 note treatment for low back pain, and a lumbosacral strain was diagnosed. Full range of motion was noted. In April 1971, the Veteran reported low back pain after picking up a fuel tank. On examination, full range of motion was noted, and an acute, mild L-5 strain was diagnosed. Treatment included heat, sleeping on the floor and no heavy lifting for 48 hours. The Veteran was directed to return to the clinic in 3 days if he was still symptomatic. Next, June 1972 service treatment records note the Veteran reported a sore back and muscular tenderness after a fall. The Veteran's report of medical examination at separation in February 1973, noted a normal spine. However, the examiner did note the Veteran reported back pain after heavy work. However, the Board finds the preponderance of the evidence is against a finding that the Veteran's low back disability is causally related to his active service. The Veteran has consistently stated that his current low back disability is a result of his in-service injuries and his symptoms have persisted since service. The Veteran's statements are competent evidence to report his symptoms and pain experienced since service; however, the Veteran's statements are not competent evidence to opine as to the presence of a causal relationship between his current low back disability and his injuries in-service, as to do so in this case requires medical expertise. Private treatment records have been associated with the claims file. Treatment records from May 1982 note x-rays of the lumbosacral spine show no evidence of old or recent, bone, joint or disc abnormalities. Treatment records in September 1993 note low back pain, with ongoing stiffness. Treatment records from September 1995 note beginning spondylosis of the lower lumbar spine. Treatment records in July 1997 note occasional low back pain. Thereafter, private treatment records in March 2004 note soreness and low back pain. In March 2004, the Veteran reported low back pain, which began after he carried his bride over the threshold. Further treatment records in August 2007 note recent increased low back pain. September 2008 treatment records note low back pain after helping a friend move his boat. Treatment in October 2008 note the Veteran reported his low back pain had improved. The Veteran was provided with a VA examination in April 2010. The VA examiner found that it was "less likely than not" that the Veteran's low back disorder was due to a specific illness, injury or event that occurred during active service. The examiner noted the Veteran's in-service documented back strains, but that these healed without issue. The examiner noted that the Veteran's current back disorder had no relationship to the remote in-service strains. Further, the examiner noted after a review of the medical literature on acute injuries, most back strains heal with or without treatment within three months. However, the examiner failed to consider the Veteran's statements regarding his continuous symptoms of low back pain since service. August 2013 VA treatment records note the Veteran reported low back pain after playing golf yesterday and his back giving out. A supplemental opinion was provided in May 2014. The examiner found that he Veteran's low back disorder was "less likely than not" incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the instances in-service where the Veteran was seen for a strain injury but that there was no evidence of a chronic disability. The examiner noted that the injuries described in the Veteran's service treatment records indicated minor strain injuries, and there was no evidence of a back injury in-service severe enough to cause a chronic back disability. The examiner noted that private treatment records note infrequent episodes of back pain occurring after an inciting event, lifting, or moving something heavy; these incidents were self-limiting and not caused by a chronic back disability. Further, the examiner noted the Veteran's reports of continuous symptomology but found no evidence to support the finding of a chronic back disorder in-service and since. The Veteran's degenerative changes to his low back were attributed to the aging process. The examiner's opinions were well reasoned with sufficient supporting rationale, included clear conclusions, based on an accurate review of the claims file, to include the Veteran's statements, medical literature, and involved a thorough medical examination of the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such the examination and opinions are of high probative value. Id. The Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's current low back disability and his active service. The Veteran's lay statements are not competent evidence to opine as to the presence of a causal relationship. VA and private treatment records associated with the claims file are silent for any indication that the Veteran's low back disability is related to service. The VA examination and supplemental opinion are highly probative and entitled to significant weight. Degenerative arthritis has been diagnosed, however, there is no evidence that the Veteran's current low back arthritis manifested to a degree of 10 percent or more within one year of the Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309. The Veteran separated from military service in February 1973. The first evidence of record indicating the presence of degenerative changes in the low back was in September 1993 private treatment records, far exceeding the one year presumptive period. Prior x-rays in May 1982 were negative for evidence of old or recent bone, joint, or disc abnormality of the lumbosacral spine. Arthritis was first diagnosed based on x-ray imaging in April 2009. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (requiring x-ray finding for diagnosis of degenerative arthritis). The Board finds that the Veteran's current low back arthritis did not manifest within the one year period after service. Accordingly, service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). Finally, the Veteran's low back disability cannot be service-connected on the basis of continuity of symptomology. 38 C.F.R. § 3.303(b), 3.309. Again, arthritis is a listed chronic disease, and therefore service connection can be established via continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). However, continuity of symptomatology has not been shown in this case. The Veteran has reported experiencing symptoms of ongoing back pain post-service. While the Veteran has consistently reported he has had pain in his low back since service, and his statements are competent evidence to identify his symptoms, such assertions are not probative in light of the conflicting evidence. The earliest indication of treatment for a low back disability is in May 1982, in which x-rays noted no evidence of old or recent bone, joint or disc abnormalities. Further, ongoing private treatment records have attributed the Veteran's low back pain to a specific physical activity, including playing golf or moving heavy items and have not been attributed to service. There is no competent and credible evidence that the Veteran's current low back disorder, to include arthritis, was present in service, or thereafter until September 1993. Service treatment records note treatment for low back pain and a lumbosacral strain. April 1971 service treatment records note the Veteran reported low back pain after picking up a fuel tank. On examination, full range of motion was noted; an acute, mild L-5 strain was diagnosed. The Veteran was directed to return to the clinic in 3 days if he was still symptomatic. June 1972 service treatment records note the Veteran reported a sore back and muscular tenderness after a fall. However, the Board notes at separation, while the Veteran did report having back pain after heavy work, the examiner found a normal spine on the clinical examination. The VA examiner in May 2014 examiner noted the Veteran's reports of continuous symptomology however; found no evidence supports the finding of a chronic back disorder in service. The examiner attributed the Veteran's degenerative changes to the aging process. The Board finds that the Veteran's statements that his current low back disorder and symptoms began in service and consistently continued thereafter are inconsistent with the other evidence of record, including the negative physical examination at separation, the normal back on x-ray in 1982, and the opinions of the VA examiner. As a result, service connection based on the chronic disorder of arthritis being noted in service and continuity of symptomology of such arthritis is not warranted. 38 C.F.R. § 3.307, 3.309(a). The preponderance of the evidence weighs against the claim; therefore, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107. Accordingly, service connection for a low back disorder is not warranted. ORDER Service connection for a low back disorder is denied. REMAND The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability and service connection for bilateral tinnitus. A remand is warranted for additional development. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was afforded a VA examination in January 2010 and a supplemental opinion in June 2014. The VA examiner in the June 2014 supplemental opinion noted no significant threshold shifts in either ear during service. The examiner found that a significant threshold shift, may indicate a noise injury and found that it was "less likely than not" that the Veteran's current hearing loss was caused by or a result of his service, to include as due to noise exposure. However, the VA examination and opinions were based on an inaccurate factual premise, and opinions based on an inaccurate factual premise have no probative value, and are therefore inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The VA examiner converted the Veteran's October 1968 and July 1969 audiograms from ASA (American Standard Association) thresholds into ISO (International Standards Organization) thresholds. The July 1969 audiogram noted it was in ASA units, and thus was properly converted into ISO units. However, the October 1968 entrance audiogram did not specifically note scores were reported in ASA units, and as such it was improperly converted, as it is assumed this was reported in ISO units. Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA (American Standard Association) units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO (International Organization for Standardization) units. The VA examiner improperly converted the October 1968 entrance examination audiogram into ISO units. This audiogram was performed by a service department after October 31, 1967, and there is no indication the scores were reported in ASA units. As such, a new VA opinion is warranted so that the Veteran's October 1968 entrance examination scores can be properly considered. As such, the Board finds that a new VA opinion is warranted. Accordingly, the case is remanded for the following action: 1. The case must be referred to a VA audiologist for a new opinion. The examiner must review the Veteran's electronic claims file, and all prior opinions provided. The examiner must provide opinions as to whether any degree of the Veteran's current bilateral hearing loss and tinnitus are related to his military service, to include as due to noise exposure. The examiner must consider the Veteran's in-service audiology tests, specifically the October 1968 audiogram as is, as it is assumed to be reported in ISO units. In addition, a private audiogram from December 1979 has been made part of the record and must be considered. The examiner must explain the significance, if any, of any shifts of hearing acuity during service or, if there were no shifts, the significance thereof. The examiner's attention is directed to the in-service audiology testing from entrance to separation. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be adjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs