Citation Nr: 18148492 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 18-05 183 DATE: November 7, 2018 ORDER Entitlement to service connection for nerve damage to back, with right-lower leg disorder, is denied. Entitlement to service connection for nerve damage to back, with left-lower leg disorder, is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The objective medical evidence does not show that nerve damage to back, with right-lower leg disorder is caused by an event, injury, or illness during active service or etiologically related to active service. 2. The objective medical evidence does not show that nerve damage to back, with left-lower leg disorder is caused by an event, injury, or illness during active service or etiologically related to active service. 3. The objective medical evidence does not show that bilateral hearing loss is caused by an event, injury, or illness during active service, it is not etiologically related to active service, nor did it manifest to a compensable degree within one year of separation from active service. 4. The objective medical evidence does not show that tinnitus is caused by an event, injury. or illness during active service, it is not etiologically related to active service, nor did it manifest to a compensable degree within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for nerve damage to back, with right-lower leg disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for nerve damage to back, with left-lower leg disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for entitlement to service connection for bilateral hearing loss have not been met, nor are they presumed to be. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 4. The criteria for entitlement to service connection for tinnitus have not been met, nor are they presumed to be. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1953 to December 1954. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) 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). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). 1. Entitlement to service connection for nerve damage to back, with right-lower leg disorder. 2. Entitlement to service connection for nerve damage to back, with left-lower leg disorder. The Veteran’s service treatment records (STRs) show that, in his January 1952 and January 1953 pre-induction examinations, the categories of “Spine, other musculoskeletal,” “Lower extremities” and “Neurologic” were checked off as normal. The Veteran’s complaints of leg-pains when walking first appear in the record in an October 2004 VA primary care noted. Records thereafter, from 2005 on record numerous medical visits for leg and back pain. The Veteran reports being only able to walk short distances. In December 2009 he reported bilateral leg pain that had been present for several years. Complaints of back pain are recorded in December 2010. Early diagnoses suggested the leg cramps had some degree of peripheral artery disease. In December 2013, the recorded history was of low back pain dating from a strain six years earlier. The Veteran continued to report pain in his back and pain in his legs. More recent diagnostic findings have included spinal canal stenosis in the low back, due to disc pathology and severe facet/ligament hypertrophy with disc disease elsewhere in the back. Chronic low back pain and peripheral vascular disease are also diagnosed. The foregoing summary of the treatment record does not establish a connection between the Veteran current disorders and any event, injury, or illness during active service. The STRs do not identify a trauma to the Veteran’s back or associated nerves, there are no complaints of back pain or lower extremity pain and no treatment, examinations or diagnoses for either. (The isolated episode of cellulitis of the left knee resolved with in-service treatment.) The evidence of record shows that leg pains and, later, back pain were first reported by the Veteran more than 50 years after separation from active service. There are no diagnoses for the Veteran’s claimed disorders until more than 60 years after separation. These recent diagnoses show current disabilities, but without something more, the Board cannot discern from the record indications of a causative connection between the current disabilities and the Veteran’s period of active service. Moreover, the record further reveals certain inconsistencies. For example, although the record shows reports of leg pain as early as 2004 and back pain, hip pain in 2005 and, apparently, no reports of back pain until 2009, in August 2017, a VA treatment note states, presumably based on the Veteran’s own reports, back pain had manifested only in the previous four-to six years and lower extremity pain only in the last two-to-three. Additionally, although the Veteran asserts that the origin of his back disorder is in service, a December 2013 VA primary care physician note states the Veteran’s low-back pain was status post sprain six years prior. For the reasons stated and based on the objective medical evidence, the Board finds the Veteran’s nerve damage to back, with right-lower-leg disorder and nerve damage to back, with left-lower-leg disorder were not caused by an event, injury or illness during active service and are not etiologically related to active service. Consequently, service connection for these disorders is not established. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 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, or 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 Consonant-Vowel Nucleus-Consonant (CNC) Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s STRs show that, in his January 1952 and January 1953 pre-induction examinations, the categories of “Ears -general” and “Drums” were checked off as normal. Although no audiometric findings were made, the Veteran scores on the Whispered Voice and Spoken Voice tests were 15/15 (normal). Identical findings were recorded in the Veteran’s December 1954 separation examination, except no findings were made for the Spoken Voice test. There are no recorded complaints of difficulty hearing or other ear problems in service. A January 2001 VA audiology evaluation note states the Veteran’s need to have words repeated and further notes that an audiological examination indicated bilateral sensorineural hearing loss, making the Veteran eligible for hearing aids. In April 2017, the Veteran underwent a VA examination for hearing loss and tinnitus, in which the VA examiner, noting that the Veteran’s was a mechanic in an infantry transportation unit and further noting his reports of being exposed to heavy equipment without the use of hearing protection, conceded military noise exposure. She also noted his reports of having worked after service with farm equipment, as well as on construction projects, without the use of hearing protection devices. In making audiometric findings, the April 2017 VA examiner found she could not test the Veteran’s left ear due to cerumen (ear wax) and marked left-ear findings as “CNT” (could not test). Those findings made for VA purposes are the following: 500 Hz 1000 2000 3000 4000 Average RIGHT 25 dB 35 45 55 55 47.5 Left CNT CNT CNT CNT CNT CNT The right-ear speech discrimination score using the Maryland CNC Test Word List was 94 percent (excellent or normal). The April 2017 VA examiner marked the left ear as CNT. She diagnosed the Veteran with right-ear sensorineural hearing loss and made no diagnosis for the left ear. The April 2017 VA examiner opined that the Veteran’s hearing loss is not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. She explained: “The [V]eteran’s hearing loss is less likely as a result of military noise exposure but more likely as not as a result of noise exposure from construction and farm work without the use of hearing protection after leaving military service.” She gave no opinion for the left ear. Examining the Veteran for tinnitus, the April 2017 VA examiner noted that the Veteran could not recall a time or circumstance of onset. She opined that the Veteran’s tinnitus is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. She explained: “The [V]eteran’s tinnitus is less likely as a result of military noise exposure but more likely as not as a result of noise exposure from construction and farm work without the use of hearing protection after leaving military service.” Although, the April 2017 VA examiner, in noting that the Veteran’s was a mechanic in an infantry transportation unit and further noting his reports of being exposed to heavy equipment without the use of hearing protection, conceded military noise exposure, the Veteran’s STRs show no complaints or treatment related to intensive and persistent levels of engine noise, as well as no requests for examination. Moreover, as just stated above, the April 2017 VA examiner also noted his reports of having worked with farm equipment after service, as well as on construction projects, without the use of hearing protection devices and concluded that therefore this is the likely cause of the Veteran’s hearing loss and tinnitus. As stated above, the medical record does not provide evidence of hearing loss and tinnitus until January 2001, when a VA audiology evaluation note mentions that indications of sensorineural hearing loss were detected on an unidentified and undated audiological examination. This is approximately 46 years since separation from active service. Yet, the record presents inconsistencies as well, as the Board further notes that the Veteran explicitly denied hearing loss whenever presenting for VA visits, as far as it can tell from its review of the medical evidence, up to December 2008. Nonetheless, as stated at the beginning of this decision, certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree, usually within one year and the Board notes that “organic diseases of the nervous system” are included among chronic diseases. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309. VA considers sensorineural hearing loss and tinnitus to be organic diseases of the nervous system. However, the record gives no indication whatsoever of the manifestation of sensorineural hearing loss and tinnitus in complaints, treatment or diagnoses within a year of separation from active service. Consequently, the presumption of service connection for sensorineural hearing loss and tinnitus as chronic diseases is not available to the Veteran. Additionally, because sensorineural hearing loss and tinnitus were never identified in service, it would be impossible to establish continuity of symptomatology following upon service and, as just stated, the subsequent record does not reflect this. Based on the objective medical evidence and the findings and opinion of the April 2017 VA examiner in particular, the Board finds the Veteran’s bilateral hearing loss is not caused by an event, injury or illness during active service, it is not etiologically related to active service, nor did it manifest to a compensable degree within one year of separation from active service. The Board further finds tinnitus is not caused by an event, injury or illness during active service, it is not etiologically related to active service, nor did it manifest to a compensable degree within one year of separation from active service. Therefore, service connection for these disorders is not established. The Board has reviewed and carefully considered the Veteran’s statement accompanying his January 2018 VA Appeals Form 9, as well as his reports to treatment providers, as they have appeared throughout the record. These have helped the Board in understanding better the nature and development of the Veteran’s disorders and how they have affected him. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to diagnose orthopedic, audiological or neurological disorders or interpret accurately clinical findings pertaining them, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Based on the evidence of record, for each claim the Board has made its findings as stated above. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel