Citation Nr: 18152356 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 14-38 869A DATE: November 21, 2018 ORDER Entitlement to service connection for lumbar degenerative disc disease (DDD) is denied. Entitlement to service connection for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. The Veteran’s currently diagnosed lumbar degenerative disc disease is not related, or occurred as a result of his service. 2. The Veteran’s currently diagnosed bilateral hearing loss disability is not related, or occurred as a result of his service. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar degenerative disc disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from February 1972 to October 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish a claim for service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § 3.303(a). The Federal Circuit Court recently held that diseases that would be considered “chronic” in a medical sense, but which are not listed in 38 C.F.R. § 3.309 (a) as an enumerated “chronic disease,” may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39, (Fed. Cir. 2013). In addition, for chronic diseases listed in 38 C.F.R. § 3.309 (a) service connection may be established by showing continuity of symptoms, which requires a claimant to demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the post-service symptoms. 38 C.F.R. § 3.303 (b) (2017); see Walker, 708 F.3d at 1340 (Fed. Cir. 2013) (holding that only those chronic diseases listed in 38 C.F.R. § 3.309 are subject to service connection by continuity of symptoms described in § 3.303(b). The correct understanding of the “condition noted during service” is that the condition is one that is indicative of but not dispositive of a chronic disease. Walker, 708 F.3d at 1339. Stated another way, continuity of symptomatology after discharge is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, i.e., “when the fact of chronicity in service is not adequately supported.” 38 C.F.R. § 3.303 (b). See also Walker, 708 F.3d at 1339-40. Organic diseases of the nervous system are among the chronic diseases listed in 38 C.F.R. § 3.309 (a), and service connection for organic diseases of the nervous system may be established based on a continuity of symptomatology. Furthermore, service incurrence will be presumed for certain chronic diseases, including organic diseases of the nervous system, if manifested to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case. 38 C.F.R. § 303(a). Lay evidence must be given due consideration, and shall include the facts, nature, and circumstances of the service. 38 U.S.C. § 1154(a). Lay evidence cannot be determined to not be credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for DDD of the lumbar spine. The Veteran is claiming entitlement to service connection for DDD, claiming that his lower back condition was caused by his work of moving cruise boxes aboard his assigned Naval ship. By way of background, the Veterans received regular examinations during his time in service, however records from February 1972, February 1975, July 1984, and October 1987 were all negative for any claimed back issues. A service treatment record from April 1989 found an instance of back pain and at the time, the Veteran claimed that he had a history of back pain. Military treatment records were again silent however in August 1992. In March 2013 the Veteran received a medical examination from a private facility that found lower back pain. The Veteran was given a VA examination in August 2013 and found a positive diagnosis of DDD lumbar spine, as was originally diagnosed in 2009. During the August 2013 examination, the examiner stated that “the Veteran’s low back pain condition [was] less likely as not (less than 50 percent or greater probability) incurred in or caused by injury, event, or illness that occurred in August 1989.” The VA examiner took into consideration the Veteran’s lay evidence that his back pain existed since 1976, however reasoned that there was no objective evidence for previous complaint of back pain. The VA examiner assessed private records indicating that DDD of the lumbar spine dated back to 2006, and that there was a span of roughly 17 years between the initial complaint of low back pain and the first objective evidence of a back condition after separation from service. The VA examiner was clear in stating that there was no nexus between the current back condition and the Veteran’s time in the Navy. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295. Turning from background to analysis, and upon a review of the evidence of record, the Board finds that the weight of the competent and probative evidence does not demonstrate that entitlement to service connection is warranted for the Veteran’s claimed lumbar degenerative disc disease. The previously mentioned VA examinations find a positive diagnosis of a DDD beginning around December 2009, and thus the first requirement of a current disability has been met. There is also evidence in the record for an in-service injury or occurrence for the period of active duty when the Veteran worked moving boxes in a Navy aircraft hangar, and providing ground support equipment for Naval aircraft. The Board notes the lay statements and complaints of the Veteran, but those statements are outweighed by the competent and credible statements of the VA medical examiners. As to the evidence in favor of the Veteran’s claim, while the Veteran is competent and credible to discuss his current symptoms, the objective medical evidence reasonably concludes that the current condition is not causally linked to the Veteran’s service. As a result, the Board finds that the lay statements of the Veteran are comparatively afforded less weight than that of the VA examiner. Post-service, with regard to continuity of symptomatology, the Veteran is indeed competent as a layperson to report continuous low back pain and other symptoms, both during service and after service. See 38 C.F.R. § 3.159 (a)(2); Barr, 21 Vet. App. at 307-09; Layno, 6 Vet. App. at 469. However, both during service and upon separation from service, he had denied that he experienced any low back pain. The Veterans service treatment records from August 1992 deny any back issues. There is also nothing in the record to indicate that these symptoms manifested within one year of separation of service. Therefore, there is no continuity of symptomatology to fulfill the requirements of service connection for certain chronic diseases under 3.309(a). Therefore, on balance, the Board finds that the VA medical examinations, treatment notes, and opinions are the most probative evidence and demonstrate that the current DDD was not incurred in or was a result of service. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); Bostain v. West, 11 Vet. App. 124 (1993). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application and as such, the third criteria for entitlement to service connection for DDD has not been met. As a result, entitlement to service connection for a lumbar degenerative disc disease is denied. 38 U.S.C. § 5107, Gilbert v. Derwinski, Vet. App. 49, 55-57. 2. Entitlement to service connection for a bilateral hearing loss disability. The Veteran is claiming entitlement to service connection for a bilateral hearing loss disability, claiming that his current hearing loss was a result of his continued work on and around Naval aircraft during service. The Veteran has been diagnosed with bilateral hearing loss for VA purposes in accordance with 38 C.F.R. § 3.385. In an August 2013 C&P examination for hearing loss, the Veteran’s left ear was found to have 92 percent discrimination. The average decibel loss is 40 in the left ear. The right ear shows a speech discrimination of 88 percent. The average decibel loss is 43 in the right ear. The following table indicates the decibel loss at the pure tone threshold for each ear. HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 30 50 60 LEFT 25 20 35 50 55 Regarding the second criteria, an in-service injury or event, the Veteran offered lay testimony as to his current bilateral hearing loss. In his October 2013 Notice of Disagreement (NOD), the Veteran described that his continued work “in and around aircraft engines” for over twenty years is causally related to his current condition of bilateral hearing loss. The Veteran also claimed that he has worked on the flight deck, in the Naval hangar on maintenance issues, and as one who provides ground support equipment to aircrafts. And while the Veterans DD-214 specifies that he worked primarily as a system data analyst, military personnel records back up the statements about the Veterans work on a flight deck and providing ground support to Naval aircraft. The Veteran is competent and credible to make these statements as to the in-service injury or event, and thus the Board affords this evidence significant probative weight as to the second criteria for entitlement for service connection. Regarding the nexus criteria for service connection, during the 2013 C&P Examination, when describing the etiology of the hearing loss, the examiner reasoned that “there is no objective evidence of PTS/onset of HL [hearing loss] in service, and it is my clinical opinion therefore that a nexus cannot be made and that his hearing loss is less likely as not (less than 50/50 probability) caused by or a result of in-service noise exposure.” In addition, the examiner reviewed the entirety of the Veteran’s record, and found that on the Veterans June 1992 separation exam, hearing was found to be within normal and acceptable levels. The VA medical examiner is credible to make these claims, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295. The Veteran noted that he may have delayed onset hearing loss after years of exposure to in-service events. The Veterans statements, however, are medically incorrect. This was described by the examiner in the 2013 C&P Examination when citing to the September 2005 Institute of Medicine Report, Noise and Military Service-Implications for Hearing Loss and Tinnitus, noting that there is no scientific support for delayed onset hearing loss years after exposure to the in-service events. As noted, under Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. The lay evidence submitted by the Veteran about delayed onset hearing loss is in direct opposition to the credible and competent medical evidence provided by the August 2013 C&P examination. As such, that portion of the Veteran’s lay statements about delayed onset bilateral hearing loss are afforded no probative weight. Upon review of the evidence of record, the Board finds that the weight of the competent and probative evidence does not demonstrate that entitlement to service connection is warranted for the Veteran’s claimed bilateral hearing loss disability. The previously mentioned VA examination does find a current diagnosis of a bilateral hearing loss disability, and thus the first requirement of a current disability has been met. In reading the evidence in a way most favorable to the Veteran, there is also evidence in the record for an in-service injury or occurrence for the period of active duty when the Veteran worked alongside aircraft engines. Finally, regarding the nexus, the Board notes the lay statements and complaints of the Veteran, but those statements are outweighed by the competent and credible statements of the VA medical examiners. Therefore, on balance, the Board finds that the VA medical examination, treatment notes, and opinions are the most probative evidence and demonstrate that the current bilateral hearing loss disability was not incurred in or was a result of service. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); Bostain v. West, 11 Vet. App. 124 (1993). In sum, while the appellant has met the first criteria for entitlement to service connection for a bilateral hearing loss disability, and the appellant has arguably met the second criteria for his work alongside aircraft engines, the evidence demonstrates that it less likely than not that the current diagnosis of bilateral hearing loss is causally related to acoustic trauma in service. The third criteria for service connection for a bilateral hearing loss disability has not been met. As bilateral hearing loss disability is classified as an organic disease of the nervous system under 38 C.F.R. § 3.309(a), the Veteran could make a claim for service connection if the disability manifested to a compensable degree within one year of separation from service. There is no evidence to indicate that this is the case, as the record is silent for complaints of hearing loss within one year after separation of service. Furthermore, since the service treatment records from the Veterans separation exam on August 1992 indicate hearing within normal levels, there is also no continuity of symptomatology. Therefore, the criteria for service connection for bilateral hearing loss under § 3.309(a) has also not been met. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application and as such, entitlement to service connection for a bilateral hearing loss disability is denied. 38 U.S.C. § 5107, Gilbert v. Derwinski, Vet. App. 49, 55-57. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel