Citation Nr: 18142830 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-15 381 DATE: October 16, 2018 ORDER New and material evidence to reopen the claim of entitlement to service connection for a low back disability has been received, to this extent, the appeal is granted. Service connection for right ear hearing loss, is denied. Service connection for left ear hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for tinnitus, as secondary to the Veteran’s now service-connected left ear hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. In a rating decision issued in May 2008, the RO denied a claim for service connection for fallen lumbar (low back disability) based on the determination that the evidence did not show that the Veteran had a diagnosed low back disability. 2. The evidence received since the May 2008 RO decision, which denied a claim of entitlement to service connection for a low back disability, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence weighs against a finding that the Veteran has a right ear hearing loss disability for VA purposes at this time. 4. Giving him the benefit of the doubt, the Veteran has a diagnosed left ear disability that had its onset in service or is otherwise etiologically related to his active service. 5. Giving him the benefit of the doubt, the Veteran has tinnitus that is etiologically related to his now service-connected left ear hearing loss disability. CONCLUSIONS OF LAW 1. The May 2008 rating decision that denied service connection for a low back disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has been received since the May 2008 RO denial of entitlement to service connection for a low back disability, and that claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for entitlement to service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a left ear hearing loss, are met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 5. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus, secondary to a now service-connected left ear hearing loss, are met. 38 U.S.C. §§ 1110, 1131, 1507 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to May 1992. These matters are on appeal from October 2013 and November 2015 rating decisions. New and Material Evidence Claim The Veteran most recently filed a request to reopen his claim for entitlement to service connection for a low back disability in June 2013. At the time of his last final denial, evidence of record included service treatment records. Since the last final denial, evidence added to the record includes VA examinations, VA treatment records, and a March 2016 private treatment record. Based on a review of this new evidence, and the low standard for reopening claims, the Board finds that the new and material criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claim for service connection for a low back disability is reopened. Service Connection for Bilateral Hearing Loss and Tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 3 38 C.F.R. § 3.310 (2018). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). Hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2018). In addition, certain diseases, such as sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that he has bilateral hearing loss that is related his service. As the Veteran had a military occupational specialty of fire support specialist, exposure to acoustic trauma is conceded. See, February 2016 Statement of the Case. Turning to the merits of the claim, the STRs include audiometric findings which reflect bilateral hearing loss, but these findings do not demonstrate hearing loss for VA purposes. On October 2013 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) examination, pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hz were 20, 20, 15, 25, and 20 Hertz (Hz) for the right ear and 15, 20, 30, 20, and 25 Hz for the left ear. The speech recognition score, using the Maryland CNC Test, was 96% in the right ear and 92% in the left ear. These findings demonstrate left ear hearing loss, but do not demonstrate right ear hearing loss for VA purposes under 38 C.F.R. § 3.385. The examiner opined that the Veteran’s hearing loss was not related to service based on comparing audiological records from enlistment with records from separation; no significant shift in hearing over normal variability was identified. Regarding tinnitus, the examiner opined that it was less likely than not caused by or a result of military noise exposure based on the rationale that tinnitus is a common known symptom of hearing loss. Significant hearing loss was not present at separation and there were no reports of tinnitus in service records. In addition, the Veteran did not describe a date or event after which tinnitus began. The Board finds that the claim for service connection for right ear hearing loss must be denied. There is no competent medical evidence to show that the Veteran has had any diagnosed right ear hearing loss pursuant to 38 C.F.R. § 3.385 during or since the Veteran’s service. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time of the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 49 (1990); Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). In this case, however, there is no evidence of a right ear hearing loss disability for VA purposes during the period under appellate review. The Board has considered the Veteran’s contentions that he has right ear hearing loss related to his service. The Board has also closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his claimed disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the existence of currently diagnosed right ear hearing loss disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Given the foregoing, the Board finds that the medical evidence outweighs the Veteran’s contentions. It is important for the Veteran to understand the fact that the Board acknowledges that he currently experiences some right ear hearing loss. Although he may have experienced decreased hearing acuity during and after his service due to acoustic trauma, the audiological findings of record do not necessarily support a finding that the Veteran has a right ear hearing loss for VA purposes at this time. As there is no evidence that the Veteran currently has a right ear hearing loss disability for VA purposes, entitlement to service connection for right ear hearing loss must be denied. However, resolving all doubt in favor to the Veteran, the Board finds that the criteria for service connection for left ear hearing loss are met. Regarding the Veteran’s claim for tinnitus, based in part on the October 2013 VA examining audiologist’s opinion that tinnitus is a known symptom of hearing loss, resolving doubt in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus secondary to his now service-connected left ear hearing loss. REASONS FOR REMAND 1. Low back disability The Veteran contends that he has a low back disability that is related to his service. The STRs include a May 1990 report which indicates a complaint of low back pain secondary to being kicked during a physical assault by three men. Subsequent STRs show continued complaints of low back pain. On October 2013 VA examination, the examiner found that there was no objective to support a diagnosed back disability at that time. However, the Veteran submitted private treatment records dated in March 2016 which indicates a diagnosis of spinal osteochondritis L5/S1. To the extent that the Veteran has current complaints of low back pain, pain resulting in functional impairment constitutes a current disability. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). Therefore, the Board finds that another examination should be conducted and medical opinion obtained on remand. 2. Increased rating for PTSD The Veteran contends that his service-connected PTSD is more severe than his current rating and warrants a higher rating. The most recent VA PTSD DBQ examination was conducted in October 2015. VA treatment records dated in March 2017 indicate that the Veteran was experiencing paranoid delusions related to suspiciousness and got into a physical fight with his nephew during which he placed him in a chokehold. Since this evidence suggests that the Veteran’s PTSD may have worsened since the October 2015 VA examination, the Veteran’s PTSD rating claim should be remanded for a new VA examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). VAOPGCPREC 11-95 (1995). While on Remand any additional VA and private treatment records should be associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain all outstanding VA medical records related to the Veteran’s PTSD and low back disability, including those dated from March 2017 to the present. All records and/or responses received should be associated with the claims file (the Veteran himself can also submit all record he believes to be pertinent). 2. After the foregoing has been completed, schedule the Veteran for a VA examination which addresses the nature and etiology of any current low back disability. All indicated tests and studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. The examiner should provide the following opinions: a) Is it at least as likely as not (50 percent or more probability) that a low back disability had its onset in or is etiologically-related to the Veteran’s active duty service? b) If there is no diagnosed disability, is it at least as likely as not (a 50 percent probability or more) that any pain reaches the level of a functional impairment of earning capacity? Described the impairment caused. 3. Schedule the Veteran for a VA examination, to ascertain and evaluate the current level of severity of his service-connected PTSD. All indicated studies and tests should be performed. The claims folder should be made available to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. If possible, but not required, an assessment of the Veteran’s capability at employment would be greatly appreciated by the Board. (Continued on the next page)   (Continued on next page) KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel