Citation Nr: 1805962 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-20 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a right leg disability. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a lower back disability, to include as secondary to a right leg disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1975 followed by several years of service in the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This matter was previously remanded by the Board in October 2014 to afford the Veteran a hearing before the Board. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in April 2016. A transcript of that hearing is of record. FINDINGS OF FACT 1. The most probative evidence of record does not demonstrate that the Veteran has a current right leg disability resulting from a fracture. 2. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran's bilateral hearing loss was caused by or incurred in service. 3. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran's tinnitus was caused by or incurred in service. 4. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran's lower back disability was caused by or incurred in service or as a result of a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right leg disability have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 1137, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2017). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 4. The criteria for service connection for a lower back disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In response to the Board remand in October 2014, the Veteran was afforded a hearing before a VLJ. Therefore, the Board finds that there was substantial compliance with the October 2014 remand. Stegall v. West, 11 Vet. App. 268 (1998). II. Service Connection Upon review of the evidence of record, the Board finds that service connection for a right leg disability, bilateral hearing loss, tinnitus, and a lower back disability, is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As a general matter, service connection requires competent evidence showing: (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 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d) (2017). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty for training. 38 U.S.C. §§ 101 (24), 106, 1131. ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e). In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324. Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service. Walker v. Shinseki, 708 F.3d 1331, 1335-37 (Fed. Cir. 2013). In the present case, sensorineural hearing loss is an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) would apply if sensorineural hearing loss is noted or shown in the record. Walker, 708 F.3d at 1338-39. Moreover, the Court recently issued a decision adding tinnitus (as an organic disease of the nervous system) to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Service connection for an enumerated "chronic disease" such as sensorineural hearing and tinnitus, listed under 38 C.F.R. § 3.309(a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316. Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). a. Right Leg Disability The Veteran contends that as a result of a tank accident during active service, he broke his right leg which developed into a permanent disability. The Veteran's July 1972 enlistment medical examination had a notation by the examiner that the Veteran had, prior to entry, fractured a leg. The Veteran's related notes on his medical history stated he had suffered a "broken leg, above the knee, torn muscles around the knee." A veteran who served during peacetime is presumed to have been in sound condition when examined, accepted and enrolled in service, except for defects noted at the time of entrance, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1132; see VAOPGCPREC 3-2003 (July 16, 2003) (holding that, to rebut this presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service). According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). As there is no clear and unmistakable evidence to the contrary in the medical evidence of record that the Veteran had sequelae from his previously broken leg, the Veteran is presumed sound upon entry with respect to his right leg claim. The Veteran's service treatment records (STRs) otherwise show that he suffered a sprained left ankle in November 1973 while playing basketball. The Veteran's records also contain a copy of the physical profile dated November 30, 1973 for which the Veteran was given limited duty while recovering from a left ankle sprain. On the Veteran's June 1975 separation medical examination, there is a notation for "sore (L) ankle." The Veteran later enlisted in the Army Reserve and did regular ACDUTRA and INACDUTRA service. A December 1987 routine medical examination noted that the Veteran had a recent right ankle fracture. The Veteran does not contend, and the evidence does not show, that this right ankle fracture occurred while serving on ACDUTRA or INACDUTRA. In his written statements relating to the right leg claim, and during the April 2016 Board hearing, the Veteran contended that in 1973 he broke his right leg and sprained his left ankle when a tank he was in rolled over, causing him to fall from the floor to the upended ceiling of the tank. The RO requested multiple records, both medical and procedural, relating to this tank accident, and found no evidence to support that this tank accident occurred. The Veteran contended in an October 2011 RO hearing that after the tank accident, he was allowed to go on leave to stay at his mother's home, where his mother and sister cared for him as he recovered. The Veteran's mother and sister submitted statements to the same. The Veteran also submitted buddy statements from fellow soldiers who related the story of the tank flipping over in a ravine and how the Veteran broke his leg as a result. The Veteran submitted an old photo of himself in what he stated was his sister's bedroom at their family home with a cast on his right leg and a bandage on his left ankle, injuries which he asserted were caused by the tank accident. In a November 2011 written statement, the Veteran stated that his right leg was casted and X-rayed during the summer of 1973. In the April 2016 hearing, the Veteran explained that his right leg was casted at the base hospital after which he had a period of physical therapy on a regular basis during which time he was on light to no duty and was "in his bed." The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131. Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. Here, there is no competent medical evidence reflective of a disability relating to residuals of a broken right leg as defined by VA at any time during the appeal period. Additionally, the Veteran's assertion that he suffered a broken right leg during a tank rollover in active service, although described in detail by the Veteran, his mother and sister, and service buddies, has no evidentiary support beyond lay statements. The Board has considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. However, in this case, the RO located STRs from the Veteran's time in active service, but those STRs do not document a broken right leg during active service, despite treatment records from the same year for a sprained left ankle. There is no record of a light duty profile created as a result of a broken right leg, whereas in 1973 the Veteran's records have a light duty profile for a left ankle sprain, a less serious injury. The RO could not locate procedural records relating to the claimed tank accident such as military police reports, or other administrative records pertaining to a tank rollover from the period described by the Veteran -despite the Veteran's statement in November 2011 that one soldier was injured so badly that he ultimately had both legs amputated. The Veteran's entrance examination has a notation about a previous broken leg, however upon separation there was notation only about a sore left ankle and no mention of a broken right leg, a more serious injury, occurring during service. In conclusion, the most probative evidence of record indicates that the Veteran does not have a current right leg disability resulting from a broken right leg in active service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. See 38 U.S.C. § 5107 (b) (West 2014); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). b. Bilateral Hearing Loss and Tinnitus The Veteran contended in the April 2016 Board hearing that as a result of exposure to noises such as artillery fire and tank movements during his active service he suffers from hearing loss and tinnitus. The Veteran testified that during active service he and his tank crew had minimal hearing protection afforded by their radio helmets or rubber ear plugs. The Department of Defense recognizes certain military occupational specialties (MOS) on a scale of probability of noise exposure from low to highly probable. The Veteran's DD-214 shows his primary MOS as 11E20, related to tank operations, which has a modern MOS equivalent of 19K, M1 armor crewman. This MOS is rated on the DOD list as having a high probability of noise exposure. The Veteran's records do not show he participated in combat and he contends that he did not participate in combat. Regardless, even taking into account the Veteran's lay statements regarding exposure to tank noise and artillery fire in training during active duty, exposure to acoustic trauma or noise alone does not mandate that service connection be granted. Rather the noise exposure must be shown to have caused his current hearing loss or tinnitus disabilities, or to have caused chronic or continuous symptoms of either. Otherwise, the Veteran's hearing loss and tinnitus must be evaluated to have been compensably disabling within one year of service to be presumed incurred in-service. See 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's STRs are silent for complaints or treatment for hearing loss and tinnitus. The Veteran's July 1972 military audiological examination at enlistment revealed normal hearing bilaterally. The results were the following puretone values, in decibels: Hertz 500 1000 2000 3000 4000 Average Left 5 0 0 0 0 0 Right 10 5 5 5 5 5 The July 1972 military examiner did not report Maryland CNC speech discrimination values. At the Veteran's August 1975 separation examination, an audiological test revealed normal hearing bilaterally. The results were the following puretone values, in decibels: Hertz 500 1000 2000 3000 4000 Average Left 0 5 0 0 0 1.25 Right 5 0 0 0 5 1.25 The July 1975 military examiner did not report Maryland CNC speech discrimination values. On his in-service Reports of Medical History, the Veteran denied hearing problems. These reports, found in medical records when medical treatment was being rendered, may be afforded great probative value because the records were generated with a view towards ascertaining the Veteran's then-state of physical fitness, so they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). While the Veteran can attest to subjective hearing loss, the Veteran is not competent to provide an objective determination of the level of hearing loss, as required under 38 C.F.R. § 3.385. At the Veteran's April 1983 medical examination upon entrance into the Army Reserve, an audiological test revealed normal hearing bilaterally. The results were the following puretone values, in decibels: Hertz 500 1000 2000 3000 4000 Average Left 0 0 0 0 10 2.5 Right 0 0 0 0 5 1.25 The April 1983 military examiner did not report Maryland CNC speech discrimination values. In December 1987 the Veteran underwent a routine Army Reserve medical evaluation with audiological examination. The results were the following puretone values, in decibels: Hertz 500 1000 2000 3000 4000 Average Left 0 0 0 0 15 3.75 Right 5 0 0 0 20 5 The December 1987 military examiner did not report Maryland CNC speech discrimination values. In August 2010 the Veteran underwent a VA audiological examination. The results were the following puretone values, in decibels: Hertz 500 1000 2000 3000 4000 Average Left 20 20 35 50 60 41.25 Right 15 15 20 35 45 28.75 The August 2010 VA examiner reported Maryland CNC speech discrimination values were 96 percent for the right ear and 96 percent for the left ear. When considered with the puretone thresholds, these values equate to Level I hearing loss bilaterally, which do not rise to a level of compensable hearing loss disability for VA purposes. See 38 C.F.R. § 4.85 (2017). The VA examiner opined that the Veteran's hearing loss was not at least as likely as not related to his active service. The examiner noted that the Veteran had normal hearing upon entry and separation from active service and opined that the Veteran's current hearing loss was related to the aging process and civilian noise exposure. Consequently, taking into consideration the Veteran's STRs and early medical reports which indicate no complaints or treatment of hearing loss with audiological testing indicating normal hearing levels, and the August 2010 VA examination which reveals a noncompensable level of hearing loss with a medical opinion giving a less than likely relationship between the Veteran's active service and hearing loss, the Board is deciding based on the available medical evidence of record which goes against a finding of service connection for bilateral hearing loss. At the April 2016 Board hearing, the Veteran explained that he had worked for 32 years in the law enforcement field and was exposed to gunfire on a regular, although infrequent basis, during which he wore hearing protection. The Veteran explained that he felt he had hearing loss problems since about 1974 or 1975 because he would listen to the television loudly and had increasing difficulty discerning conversations with other people. At the April 2016 Board hearing, the Veteran reported that tinnitus symptoms began around 1972 or 1973 while still in active service. Medical records from that time period and in later years do not document complaints of tinnitus. The VA examiner opined that the tinnitus was less likely than not related to service as it was most likely related to hearing loss which the examiner opined was less likely than not related to the Veteran's active service as explained above. After a full review of the record, the Board finds that the weight of the evidence demonstrates that bilateral hearing loss and tinnitus did not have their onset in service, were not manifest to a compensable degree within one year of separation from service, and are not related to service for the reasons discussed above. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application, and the claims for bilateral hearing loss and tinnitus must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. c. Lower Back disability The Veteran submitted medical records showing that he has a lower back disability, e.g. medical records documenting lumbar epidural injections due to lumbar spondylosis. Thus the first element of service connection is met. The Veteran has contended in written statements, in the October 2011 RO hearing, and in the April 2016 Board hearing, that he has a back injury as a result of the tank accident rollover, working on tanks in general, parachuting during active service, or as a secondary result of his right leg disability. The Veteran's STRs are silent for complaints of or treatment for back injury. Post-service, the Veteran's submitted medical records show treatment for back pain beginning around 2009. As discussed above, the Veteran's assertion that he was injured as a result of a tank rollover accident does not have evidentiary support and thus, as with the right leg disability claim, the lower back disability claim cannot be based on an event which the Board has found to be not credible. The Veteran asserted in a January 2011 statement that he also hurt his back working on tanks during active service, by carrying heavy parts up and down the tank, and other maintenance tasks. The Veteran submitted cards indicating he was in a parachute club and also claims that because of hard landings he suffered injury to his back. Again, the Veteran's STRs show no complaint of or treatment for a back injury during service. The Veteran has not been afforded a VA examination for his lower back claim. VA regulations provide that a medical examination or medical opinion is necessary if the medical evidence "[c]ontains competent lay or medical evidence of a current diagnosed disability; establishes that the Veteran suffered an event, injury, or disease in service, or has a disease...listed in § 3.309... manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption..." See 38 C.F.R. § 3.159(c)(4). Here, although the Veteran's records show he has a qualifying current disability, the Veteran's records do not show an event, injury, or disease in service. Consequently, the evidence of record does not support that a VA examination is required. Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). Secondary service connection is not available to the appellant, as he currently is only service-connected for a scar on his hand, and service connection is not otherwise granted in this decision. The most probative and persuasive evidence is against finding that the Veteran's current lower back disability is related to service. Accordingly, service connection is denied. As the preponderance of the evidence is against the Veteran's lower back claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right leg disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a lower back disability, to include as secondary to a right leg disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs