Citation Nr: 18151056 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 15-30 379 DATE: November 19, 2018 ORDER Service connection for a low back disability is granted. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran developed chronic low back pain while in service that has persisted to the present time. 2. The Veteran does not have a diagnosis of bilateral hearing that meets VA disability criteria. 5. The Veteran’s tinnitus initially developed many years after his separation from service and is not related to his service or to any incident therein. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.385. 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served several periods of active duty for training in the U.S. Army from November 1982 to March 1983, and on active duty in the U.S. Army from September 1987 to September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision issued in June 2012. 1. Entitlement to Service Connection for a Low Back Disability The Veteran asserts that his low back pain began in service in 1987, and that he has continued to experience back pain since his separation from service. Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Pain that results in functional impairment constitutes a disability for VA purposes. Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467, *18-28 (Fed. Cir. Apr. 3, 2018). As noted in the above findings of fact, the Veteran currently experiences low back pain, which he has had continuously since he injured his low back in service. The Veteran’s service treatment records show that he routinely sought treatment for pain in his lower back while on active duty, and they corroborate that the Veteran was diagnosed with chronic low back pain while he was in service. The Veteran has stated that he injured his back in service while playing basketball, and that he has suffered back pain ever since that incident. The Veteran’s current treating physician has also provided a statement explaining that the Veteran has been treated for chronic back problems (diagnosed as strain), that his low back condition began in service, and is connected to his military service. The April 2012 VA examiner acknowledged that the Veteran had numerous complaints of low back pain while in the service, and found that the Veteran’s disability results in functional impairment due to weakened movement, excess fatigability, swelling and interference with sitting, standing and/or weight-bearing. Therefore, the first and second elements of service connection are satisfied. Regarding the third element, a nexus between the Veteran’s in-service injury and his current disability, the April 2012 VA examiner concluded that the chronic low back condition was less likely than not incurred in or caused by an in-service injury, event, or illness. Although the service treatment records clearly demonstrate that the Veteran had chronic low back pain symptoms while in the service, including muscle pain, joint pain, and reduced range of motion, the VA examiner opined that the current back pain is not related to the in-service back condition because the Veteran did not request medical treatment for his low back condition for 22 years after service, and a motor vehicle accident may have taken place in 2007. The VA examiner also found that the DDD is likely part of the aging process. However, the VA examiner did not consider the Veteran’s statements regarding the persistent low back pain he experienced while in the service, and his continuing back pain since service. In addition, although the Veteran was involved in a post-service motor vehicle accident, the VA examiner did not consider whether the motor vehicle accident simply worsened the chronic low back pain condition the Veteran had prior to the accident. Therefore, the VA examiner did not provide an adequate rationale for the conclusion that the Veteran’s chronic back sprain was not at least as likely as not incurred in or caused by the in-service injury, event, or illness, but simply made a logical leap based on the lack of medical documentation evidencing treatment of the Veteran’s chronic back pain since service. It is imperative that the VA examiner fully explain the rationale behind the conclusion, based on accurate factual and medical evidence, not simply jump to a conclusion without fully addressing why that conclusion was reached. In addition, the April 2012 VA examination was not able to consider the statement of the Veteran’s private physician, as that evidence was not available at the time of the April 2012 VA examination. Consequently, the June 2012 VA examination is lacking in probative value. Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. See Nieves–Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the April 2012 VA examiner opinion is inadequate for VA rating purposes. A 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); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Pain is the sort of condition that is observable by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The Veteran’s lay statements are supported by the service treatment records, as well as his private physician’s opinion. Therefore, the Board finds that the Veteran’s lay statements, supporting that he suffered persistent chronic low back pain since service, are competent and credible based on the evidence of record. As the preponderance of the evidence supports the claim, service connection for a low back disability is warranted. 2. Entitlement to Service Connection for Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is related to his military service. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For 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; when the auditory thresholds for at least three of the above 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. There are no audiometric findings in the Veteran’s service treatment records that meet the above requirements. However, “when audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. In this case, the service treatment records do not document exposure to loud noises during the Veteran’s active duty service. The Veteran’s DD 214 separation documents show that his military occupational specialty was an X-ray Specialist, which is not associated with routine exposure to loud noise. The Veteran submitted a copy of a March 2013 audiometric evaluation from The Hearing Center of Lake Charles. That evaluation showed essentially normal hearing. The highest decibel threshold was 30dB at 3000Hz in the right ear, with all other thresholds at or below 20 in both ears. That evaluation also included the work recognition testing, which was recorded as 100 percent in both ears. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of a current hearing loss disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran is competent to state that he has difficulty hearing, as a lay person, he is not competent to diagnose a hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In short, the objective medical evidence of record does not establish a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. In the absence of a current hearing loss disability, additional discussion concerning nexus or presumptive service connection is not required, and service connection for bilateral hearing loss is denied. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 3. Entitlement to Service Connection for Tinnitus The Veteran contends that his tinnitus is due to military service. He has not, however, asserted that it began during service, or explained why he believes it is related to service. The Board concludes that while the Veteran has indicated symptoms of tinnitus, it was not chronic in service nor did it manifest to a compensable degree in service or within the one year presumptive period, and continuity of symptomatology has not been established. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(a). The evidence of record does not reveal any reports of tinnitus during service. The Veteran does not assert, and the evidence does not indicate, that the Veteran had an onset of tinnitus one year after service, nor experienced a continuity of symptoms following service. The medical records document that the Veteran’s first complaints of tinnitus occurred in January 2012, over 20 years since his separation from service. In addition, the March 2013 audiometric evaluation from The Hearing Center of Lake Charles did not indicate a specific complaint of tinnitus. In fact, other than submitting a claim for service connection for tinnitus, the Veteran has not provided any evidence that his tinnitus is connected to his service. To the extent that the Veteran has offered his own opinion in support of his claim, his opinion is not competent, as he lacks the requisite expertise. As the preponderance of the evidence is against a finding that the Veteran’s tinnitus is related to service, the claim must be denied. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Temple, Associate Counsel