Citation Nr: 18147929 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-07 366 DATE: November 6, 2018 ORDER The claim for service connection for a neurological disorder is denied. The claim for service connection for a neck disability is denied. The claim for service connection for a right leg disability is denied. The claim for service connection for a left leg disability is denied. The claim for service connection for a right shoulder disability is denied. The claim for service connection for a left shoulder disability is denied. The claim for service connection for chronic headaches is denied. The claim for service connection for a psychiatric disability is denied. The claim for service connection for bilateral hearing loss is granted. The claim for service connection for tinnitus is granted. REMANDED The claim for service connection for degenerative disc disease (DDD) of the lumbar spine is remanded. FINDINGS OF FACT 1. There is no competent medical evidence a neurological disorder. 2. There is no competent medical evidence of a neck disability. 3. There is no competent medical evidence of a right leg disability. 4. There is no competent medical evidence of a left leg disability. 5. There is no competent medical evidence of a right shoulder disability. 6. There is no competent medical evidence of a left shoulder disability. 7. There is no competent medical evidence of a chronic headache disability. 8. There is no competent medical evidence of a psychiatric disability. 9. Resolving reasonable doubt in the Veteran’s favor, the evidence establishes bilateral hearing loss resulted from acoustic trauma in service. 10. Resolving reasonable doubt in the Veteran’s favor, the evidence establishes tinnitus resulted from acoustic trauma in service.   CONCLUSIONS OF LAW 1. The criteria for service connection for a neurological disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for a right leg disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for service connection for a left leg disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 5. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 6. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 7. The criteria for service connection for a chronic headache disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 8. The criteria for service connection for a psychiatric disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 9. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 10. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to July 1971. He served in Vietnam from November 1969 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) from June 2014 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). General laws and regulations that pertain to service connection The Veteran claims entitlement to service connection for a neurological disorder, a neck disability, a bilateral leg disability, a bilateral shoulder disability, chronic headaches, a psychiatric disability, bilateral hearing loss and tinnitus. In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 38 C.F.R. § 3.303 (a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Alternatively, under 38 C.F.R. § 3.303 (b), service connection may be awarded for a “chronic” condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309 (a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran’s present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309 (a)). Neurological disorders are listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Significantly, in this case, no chronic disease (neurological) was identified during service. The Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). Entitlement to service connection for a neurological disorder, a neck disability, a bilateral leg disability, a bilateral shoulder disability, chronic headaches, and a psychiatric disability The Veteran claims that he has a neurological disorder, a neck disability, a bilateral leg disability, a bilateral shoulder disability, chronic headaches, and a psychiatric disability, which are related to military service. As explained, the most fundamental requirement for any claim for service connection is that the Appellant has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA’s adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). There is no competent evidence of the claimed disabilities (a neurological disorder, a neck disability, a bilateral leg disability, a bilateral shoulder disability, chronic headaches, or a psychiatric disability) upon which to predicate a grant of service connection. The Veteran has neither provided nor identified any medical evidence showing that he has a neurological disorder, a neck disability, a bilateral leg disability, a bilateral shoulder disability, chronic headaches, or a psychiatric disability. Therefore, service connection cannot be granted. Without proof of a current disability, there can be no valid claim. Service connection for bilateral hearing loss and tinnitus The Veteran further claims that service connection is warranted for bilateral hearing loss and tinnitus. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But before service connection may be granted for hearing loss, it must be of a particular level of severity. For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies 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. VA audiological examination in May 2015 include diagnoses of bilateral hearing loss and tinnitus. Therefore, this satisfies the first element of the Shedden/Hansen analysis, current disability. Concerning the second element of the Shedden/Hansen analysis, evidence of in-service injury, the January 1969 an audiogram at induction revealed pure tone thresholds in each ear at 500, 1000, 2000, and 4000 Hertz of 0 decibels, respectively. When subsequently examined in June 1971 prior to his separation from service, an audiogram revealed pure tone thresholds in each ear at 500, 1000, 2000, and 4000 Hertz of 0 decibels, respectively. Hence, he did not have hearing loss, even according to Hensley, certainly not according to § 3.385, when examined for discharge from service. However, the Board observes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, in light of the Veteran’s statements regarding exposure to loud noises during service, and given that his Military Occupational Specialty (MOS) was as an armor crewman, the Board finds that the Veteran’s statements in regard to his noise exposure credible and consistent with military service. See 38 U.S.C. § 1154 (b). Therefore, the Veteran meets the first (current disability) and second (in-service injury) requirements of the Shedden/Hansen analysis. The question then becomes whether his current hearing loss disability and/or tinnitus are attributable to the acoustic trauma he experienced in service or, instead, the result of other unrelated factors. As noted above, in May 2015, the Veteran underwent a VA audiological examination which showed that he had bilateral hearing loss in both ears. In regard to the question of whether the diagnosed bilateral hearing loss was related to his period of active service, the audiologist concluded that hearing loss and tinnitus were less likely as not caused by his military noise exposure. The examiner noted that the Veteran had noise exposure in the military, audiograms in service indicated no threshold shifts, and his separation audiogram reflected normal hearing. However, this medical opinion does not address post-service development of hearing loss due to in-service acoustic trauma. It is based solely upon the absence of documented hearing loss upon separation and a lack of a shift in hearing acuity during service. As such, the Board finds it to be of little probative value. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). Here, the record reflects the Veteran has bilateral hearing loss that is disabling for VA purposes. He attributes his hearing loss to noise exposure during service. Though he did not make any hearing-related complaints during service, the Board has no reason to doubt the credibility of his statements. He is competent to report his experience as he would have personally observed the noise. Accordingly, after careful review of the probative opinion evidence, the Board grants service connection for bilateral hearing loss and tinnitus. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran also contends he has DDD of the lumbar spine due to military service. Service treatment record dated in June 1970, shows the Veteran received medication for the treatment of back strain. An October 2015 private magnetic resonance imaging (MRI) report shows DDD of the lumbar spine. As he has not been afforded a VA examination for this claim, one should be provided on remand. The matter is REMANDED for the following action: The RO should arrange for a VA evaluation by a qualified medical professional to ascertain the etiology of the Veteran’s DDD of the lumbar spine. Based on the record, the examiner should comment on whether it is it at least as likely as not (a 50% or higher degree of probability) that the Veteran’s DDD of the lumbar spine, is related to service, to include the June 1970 treatment for back sprain?   Detailed reasons for this opinion should be provided. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.D. Jackson, Counsel