Citation Nr: 1804927 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-40 549A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty in the Navy from January 1951 to October 1954, and the Air Force from January 1955 to August 1971. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 2014 rating decision, by the Oakland, California, Regional Office (RO), which determined that new and material evidence had been received to reopen a previously denied claim of entitlement to service connection for a back disorder; however, the RO confirmed and continued the denial of that claim on the merits. That rating decision also denied the claim for service connection for bilateral hearing loss. The Veteran perfected a timely appeal to that decision. Regardless of whether the RO has determined that new and material evidence has been received sufficient to warrant reopening a previously denied claim, because such a question is a jurisdictional matter, the Board must initially determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In his Informal Hearing Presentation, dated in January 2018, the Veteran's representative raised the claimed of entitlement to service connection for tinnitus and peripheral neuropathy of the lower extremities. These issues are referred to the RO for appropriate development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a) (2) (2012). FINDINGS OF FACT 1. In an October 1971 rating decision, the RO denied service connection for a back condition; the Veteran did not appeal that decision within one year of notice of thereof. 2. Evidence received since the October 1971 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a back condition. 3. The Veteran's currently diagnosed low back disorder, degenerative arthritis of the lumbar spine with degenerative spondylolisthesis L4-L5 and L5-S1, did not have its onset during his active duty service, did not manifest within one year of active service, or is not otherwise etiologically related to active service. 4. The Veteran's bilateral hearing loss was first shown many years after discharge from service and is not otherwise shown to be related to military service. CONCLUSIONS OF LAW 1. The October 1971 rating decision denying service connection for a back disorder is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence received since the final October 1971 rating decision is new and material; therefore, the criteria for reopening the claim of entitlement to service connection for a back disorder have been met. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156 (a), 20.1103 (2017). 3. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background & Analysis-Claim to reopen-S/C low back disorder. Unappealed RO decisions are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, the Veteran initially filed a claim for service connection for back troubles (VA Form 21-526) in September 1971. The RO considered the service treatment records (STRs), which indicates that, on June 8, 1958, the Veteran was seen for complaints of hurting his back while lifting something 3 days ago; the impression was muscle strain. X-ray study of the lumbar spine, dated in May 1971, was normal. By a rating action in October 1971, the RO denied the claim for service connection for back troubles, based on a finding that back trouble was not found on the last examination; as such, there was no evidence of a current disability for which service connection could be granted. The Veteran did not file a notice of disagreement (NOD) with that determination within one year of the notification thereof in November 1971. Consequently, as no timely NOD or new and material evidence was received during the appeal period following the November 1971 notice of determination, that decision became final. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2017). New and material evidence is therefore required to reopen the claims of service connection for a back disorder. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Veteran's request to reopen his claim of service connection for a low back disorder (VA Form 21-526EZ) was received in November 2013. Submitted in support of the claim was the report of a DBQ examination of the spine, dated in February 2014, which reflects a diagnosis of degenerative lumbar spine arthritis with degenerative spondylolisthesis L4-L5 and L5-S1. The Board finds that the evidence received since the October 1971 rating decision is both new and material. In the instant case, the additional evidence includes a current diagnosis of degenerative arthritis of the lumbar spine with degenerative spondylolisthesis L4-L5 and L5-S1. In the October 1971 rating decision, it was essentially found that there was no evidence of a back condition. Thus, evidence of a current disability was not previously of record and the new medical evidence as described above is relevant and establishes a previously unestablished fact-current disability. Moreover, the Veteran maintains that he has had back problems since service. Consequently, there is now a diagnosis of a low back condition and a suggested link between the current condition and active military service. For this reason, the Board finds that new and material has been submitted. Accordingly, the Veteran's claim of entitlement to service connection for a low back condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). II. Legal Analysis-General service connection provisions. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a showing of certain chronic diseases, such as arthritis, 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b) (2017). Certain chronic diseases, including arthritis and sensorineural hearing loss, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372(Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative 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. § 5107 (b); 38 C.F.R. § 3.102. A. S/C low back disorder. The Veteran maintains that his claimed low back disorder developed while on active duty. It is argued that the Veteran was treated for a back injury with associated pain and burning sensation in 1958, and he has continued to experience similar symptoms today. Therefore, it is argued that the evidence shows an inservice event, a current disability and continuation of symptomatology, warranting a grant of service connection. After review of the evidence, the Board finds that service connection is not warranted for a low back disorder, currently diagnosed as degenerative arthritis of the lumbar spine. Significantly, while the STRs reflect a history of back pain in June 1958 and a diagnosis of muscle strain, the remainder of the STRs is silent with respect to any complaints or findings of a chronic low back disorder, and X-ray study of the lumbar spine in May 1971 was reported to be normal. The first clinical documentation of the onset of a chronic low back disorder is dated in February 2014, more than 43 years after service separation from his period of honorable service. (A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).) This long time period until the first post-service clinical showing of a chronic back disorder is unfavorable to the claim. Other than the Veteran's assertions, there is no evidence indicating that there is a relationship between the Veteran's current low back disorder and military service. Following the DBQ examination in February 2014, the examiner reviewed the medical records and offered his opinion that the Veteran's lumbar spine condition is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that Veteran's military STRs note only one clinic visit in 1958 for back pain noted as muscle strain with no further active duty assessment or treatment. He also noted that, in 1971, an x-ray notes a normal lumbosacral spine with no evidence of spondylolisthesis. The examiner further noted that the record is silent for any further low back assessment treatment for the past 43 years until current x-ray showing degenerative arthritis/degenerative spondylolisthesis which is considered age related and not a result of a muscle strain over 40 years ago. The examiner further added that review of online medical literature such as Cleveland Clinic and Medicine Net suggest that degenerative spondylolisthesis is more common in people over age 50, and far more common in individuals older than 65. With aging, the discs lose water, becoming less spongy and less able to resist movement by the vertebrae. Consequently, the medical opinion evidence is against the claim. There is no contrary medical opinion on file. In essence, the evidence establishes that the Veteran had some low back pain in service. However, the more probative evidence establishes that he did not have lumbar spine pathology during service or arthritis within one year of separation. Furthermore, the evidence establishes that the remote onset of lumbar spine pathology is unrelated to service and that a chronic lumbar pathology was not manifest until more than 40 years after service. In his August 2016 VA Form 9, the Veteran stated that on his report of medical history for his retirement physical he checked "yes" indicating that he had back trouble and that the second page of the examination states that he had back trouble consisting of occasional low back pain especially with long periods of bending over. The Board has reviewed the claims file but finds no report of medical history or examination from service documenting back pain or symptoms. There is an x-ray report from May 1971 documenting the Veteran's report of a long history of lumbosacral pain but the impression from the medical officer was a normal lumbosacral spine. The VA examiner clearly reviewed that report but provided the opinion already discussed above. There are numerous reports of medical history and examination from service but none of those indicate that he had recurrent back pain. The service records appear complete and there is no indication from the claims file that there are missing or outstanding service treatment records. The Board acknowledges the x-ray report just referred to but finds that the VA opinion is more probative as a medical professional reviewed that report prior to providing the opinion. As to the Veteran's statements that there is a relationship between his current low back disorder, degenerative arthritis of lumbar spine with spondylolisthesis and his military service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a Veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the Veteran's statements as to the etiology of his degenerative arthritis of the spine, diagnosed years after service, are not competent evidence. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Whether his symptoms during service represent the onset of the later diagnosed condition, or are unrelated, is a complex question, particularly given the diagnostic imaging results in this case, as discussed by the DBQ examiner. Accordingly, this lay evidence does not constitute competent evidence. The most probative evidence of record as to the nexus element is the DBQ examination report. For all of the above reasons, the preponderance of the evidence is against a finding that there is a nexus between the Veteran's current back disability and his active service. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran's claim for entitlement to service connection. 38 U.S.C. § 5107 (b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. S/C bilateral hearing loss. The Veteran contends that he is entitled to service connection for hearing loss due to noise exposure during military service. In his substantive appeal, dated in August 2016, the Veteran related that he served onboard the USS Frank Knox (DDR-742) which was a destroyer; during that time, they were constantly going into General Quarters during the Korean War. He also reported that they constantly shelled the coast and were involved in other live fire operations. The Veteran indicated that he was a Teletype Equipment Technician in the Air Force. During his tour at the Chanute Air Force Base, he was required to work on one teletype at the weather station; he stated that it was so loud that they had to build a special box around it to help dampen the noise. For the purpose of applying the laws administered by VA, impaired hearing is considered 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 threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this regard, the Board notes that the October 2011 DBQ audiological evaluation diagnosed the Veteran with bilateral sensorineural hearing loss consistent with 38 C.F.R. § 3.385. Thus, the requirement of a current disability has been fulfilled. In this case, the dispositive issue is whether there is a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this regard, the Board notes that the records indicate that the Veteran entered active duty in January 1955. His DD Form 214 indicates that his military occupational specialty was as an equipment technician and maintenance supervisor; he also reported serving at a teletype technician. He was awarded the National Defense Service Medal, the Air Force Good Conduct Medal with 2 Bronze Oak Leaf Cluster, and the Air Force Longevity Service Award with Bronze Oak Leaf Clusters. The Board finds it likely that he was exposed to loud noise during service. At his enlistment examination in January 1955, audiometric examination revealed hearing acuity of 15/15 in both ears for whispered and spoken voice. Subsequently, an audiometric examination in December 1958 revealed puretone thresholds of 5 (20), 0(10), 0(10), and 5(10) decibels in the right ear at the 500, 1000, 2000, and 4000 Hertz levels; in the left ear, puretone thresholds were 0(15), 0(10), 0(10), and 0(5) at the same Hertz levels. Of record is the report of a special assignment in January 1962; at that time, an audiometric examination revealed puretone thresholds of 0(15), 0(10), -5(5), and 5(10) in the right ear at the 500, 1000, 2000, and 4000, Hertz levels; and in the left ear, puretone thresholds were 5(20), 5(15), 0(10), and 5(10) at the same Hertz levels. On the occasion of an examination for remote duty in June 1963, an audiometric examination revealed puretone thresholds of 0(15), 0(10), 0(10), 15(25), 15(20), and 10(20) decibels in the right ear at the 500, 1000, 2000, 3000, 4000, and 6000 Hertz levels; in the left ear, the thresholds were 0(15), 5(15), 0(10), 10(20), 15(20), and 20(30) at the same Hertz levels. Another periodic examination in December 1967 revealed puretone thresholds of 5, 0, -10, 10, 0, and 15 decibels in the right ear at the 500, 1000, 2000, 3000, 4000, and 6000 Hertz levels; and in the left ear, puretone thresholds were 5, 5, -5, 10, 5, and 10 at the same Hertz levels. As noted above, the Veteran had several audiological evaluations during service at which times auditory thresholds were recorded. The Board notes that, prior to January 1, 1967, audiology testing was generally conducted under the American Standards Association (ASA) standards. After that date, the Board ordinarily assumes that any audiometric testing was conducted using current ISO (International Standards Organization) measurements. However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of this, where necessary to facilitate data comparisons for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to International Standards Organization-American National Standards Institute (ISO-ANSI) units by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250, 500, 1000, 2000, 3000, 4000, 6000, 8000 add 15, 15, 10, 10, 10, 5, 10, and 10. In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) Post-service medical records were silent with respect to any complaints or clinical findings of hearing loss until November 2013 when the Veteran was seen for an Audiometric evaluation; he indicated that he had experienced a gradual decrease in his hearing over the past 3 years. The Veteran indicated that, while in the Navy, he was a gunner's mate; he also reported that he was in the Air Force and worked primary as security but he was exposed to some teletype. He denied significant occupational noise exposure. The assessment was normal sloping to a profound high frequency sensorineural hearing loss of combined types in the right ear; as to the left ear, he had normal hearing through 2000 Hertz sloping to a severe high frequency sensorineural hearing loss of combined type. The Veteran was afforded a DBQ examination for evaluation of hearing loss in February 2014. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 65 70 75 LEFT 35 40 50 60 65 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 100 percent in the left ear. The pertinent diagnosis was sensorineural hearing loss in the frequency range of 500 to 4000 Hz level, same in the left ear. The examiner opined that the Veteran's hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner explained that the last threshold test dated in December 1967 documents hearing which is within normal limits with no significant downward shifts between entrance and final test. The examiner also noted that the configuration seen today was not consistent with a purely noise induced hearing loss. He explained that there is too much mid frequency involvement for this loss to be due to noise exposure. The examiner stated that there is another issue at work here impacting this Veteran's mid frequencies, possibly presbycusis, aging. As summarized above, the first evidence of sensorineural hearing loss was not shown in service or within one year of service separation. In fact, the first objective clinical documentation of hearing loss is dated in November 2013, approximately 42 years after service separation. The Board must note the lapse of many years between the Veteran's separation from service and the first diagnosis of sensorineural hearing loss. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). As such, service connection for hearing loss cannot be granted on a presumptive basis. 38 C.F.R. § 3.303. However, service connection for hearing loss can still be established if medical evidence shows that a current impaired hearing disability is actually due to incidents during service. Hensley v. Brown, 5 Vet. App. 155 (1993). In light of the above, the Board finds that the most probative evidence of record shows that the Veteran's bilateral hearing disability is not due to an incident during service. The only medical opinion regarding a nexus to military service is the negative opinion provided by the DBQ examiner. That opinion is clear and well supported by rationale. Absent competent evidence establishing a link between current hearing loss and service, the Veteran's claim for service connection for hearing loss cannot be granted. Again, there is more than a 42 year gap between the Veteran's discharge from service and the first objective evidence of a disability. The Veteran's statements for treatment purposes place the onset of noticeable hearing loss 3 years prior to seeking treatment in November 2013, years after service and there is no competent evidence linking the remote onset to an in-service event. Rather, the only competent opinion addressing the origin of the disability is a negative opinion. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for hearing loss. See Gilbert, 1 Vet. App. at 55. The Board acknowledges the Veteran's assertions that he was exposed to loud noises in service, which he claims caused his hearing loss. It is true that the Veteran's lay statements may be competent 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. § 1153 (a); 38 C.F.R. §§ 3.303 (a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); also see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, relating noise exposure in service to a current disability, especially with a lengthy gap in the medical record and a delay in a noticeable loss, requires opinion evidence from experts with medical training, and is not subject to lay assessment. The Board also acknowledges the argument presented in the January 2018 Brief that there were shifts in hearing thresholds during service. However, the Board finds the opinion of the DBQ examiner to be more persuasive than the Veteran's lay assertions. The examiner explained that there were no significant downward shifts. Accordingly, the Board does not find that the Veteran's hearing loss has been present since active service and further finds that the competent medical evidence weighs against finding a relationship between current hearing loss and the Veteran's period of active service, to include in-service noise exposure. The Veteran has not submitted competent evidence to contradict the DBQ examiner's opinion. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule is not helpful to this claimant. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disorder is reopened. Service connection for a low back disorder is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs