Citation Nr: 18153721 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 13-11 247 DATE: November 28, 2018 ORDER Entitlement to service connection for a back disability, claimed as back injury, is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s back disability did not have its onset during service and is not the result of an injury, disease, or event in service. 2. Hearing loss was not shown in service or within a year of service discharge; and, the preponderance of the evidence fails to establish that Veteran’s current left or right ear hearing loss disability is the result of a disease or injury during his active duty service, including in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A, § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1967 to January 1969. This appeal arises before the Board of Veterans’ Appeals (Board) from a January 2011 rating decision by a Department of Veteran Affairs (VA) Regional Office (RO). In August 2017 the Board remanded the case for further development which has been completed. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the United States Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In Jandreau, the Federal Circuit stated as follows: “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). 1. Entitlement to service connection for a back disability, claimed as back injury The Veteran has variously stated that he injured his back in “1967 in Germany” (on written statement dated in January 2011) and in September 1968 while unloading 105 mm. shells from a tank in Germany (on written statement dated in March 2010). He has asserted that, after separation from service, he sought treatment at Marion VA Medical Center. A Finding of Unavailability Treatment Records from Marion VA Medical Center, for records dated between January 12, 1969 to December 31, 1969; was issued in January 2011. The Veteran has maintained that after his in-service injury, his job duty was changed to accommodate his back. The Veteran’s representative has also asserted that his service treatment records from 1967 when he was stationed in Germany are missing from the file. Pursuant to the Board’s remand, the Veteran’s military personnel records have been associated with the file. No further service treatment records were available. The Board has considered whether the Veteran should be scheduled for a VA examination with a medical opinion regarding a possible relationship between his current back disability and his military service. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds, however, that such an examination is not necessary to decide this claim because the evidence of record is sufficient to decide the claim. In this regard, the Board notes that the first showing of back disability in the record is approximately 40 years after the Veteran’s separation from service. Further, since there is no competent (medical) evidence suggesting that the Veteran’s back disability may be the result of his period of active service, an examination is not warranted. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require an examination). The service treatment records do not contain any reference to a back injury. On the report of medical history completed by the Veteran in August 1968 prior to his separation from active duty, he denied any history of recurrent back pain. The August 1968 separation examination revealed a normal spine examination. A January 2009 treatment record, over 40 years after service, reflects that the Veteran reported low back pain with left upper leg pain. A January 2009 MRI showed L5 bilateral pars defects allowing for anterolisthesis of L5 and SI; mild central canal stenosis at L4-5; triangulation of the canal at L3-4; multilevel foraminal stenosis (minimal); and minimal lumbar spondylosis and mild facet arthropathy. The Board finds that service connection is not warranted for a back disability. The Board accepts the Veteran’s account of an injury to his back in service. However, there is no link between his back disability diagnosed in 2009 and his period of service decades earlier. The Veteran has not reported any continuity of back pain or other symptomatology since service, and there is no medical evidence of record that demonstrates or suggests a relationship between the current back disability and an in-service injury. While the Veteran, by filing his claim, essentially asserts that his current back disability is related to service, this question does not lie within the range of common experience or common knowledge, but requires medical experience or training. The Veteran is not shown to possess such expertise. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, service connection for a back disability is not warranted. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 2. Entitlement to service connection for bilateral hearing loss The Veteran has asserted that he has bilateral hearing loss due to his period of service. Specifically, the Veteran states that he developed a hearing loss disability due to exposure to noise hazards during service. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, where post-service audiometric findings indicate that there is a hearing loss disability, and where there is a sound basis upon which to attribute the post-service findings to the in-service injury (as opposed to incurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 157-59 (1993). For the purposes of the 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 CNC Test are less than 94 percent. 38 C.F.R. § 3.385. “[W]hen 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 between 0 and 20 [decibels], and higher thresholds indicate some degree of hearing loss.” Hensley, 5 Vet. App. at 157. In June 2010, the Veteran was afforded a VA examination for hearing loss. The examiner did not find hearing loss for VA purposes under 3.385 in the left ear. The examiner did find hearing loss for VA purposes in the right ear; however, the examiner determined that the right ear hearing loss was not due to or related to the Veteran’s period of service. The examiner’s rationale for finding no nexus was based on pre-induction and separation testing that indicated normal hearing thresholds bilaterally. The examiner stated that there was no significant decrease in hearing thresholds from pre-induction to separation. The Board noted in its prior remand that this rationale was inadequate for the purposes of adjudicating the claim. Hensley, 5 Vet. App. at 155, 160. Prior to January 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since December 31, 1970, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Between January 1, 1967 and December 31, 1970, there was variance regarding whether ASA standards or ISO-ANSI standards were used. In order to facilitate data comparison in this decision, for service department audiometric test results through December 30, 1970, the ASA standards have been converted to ISO-ANSI standards. The Veteran’s service treatment records include pre-induction, enlistment, and separation audiological examinations with hearing acuity in pure tone threshold values as follows (ISO-ANSI standards are in parenthesis): A November 1966 Pre-Entry Audiometer Examination, noted as ASA: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) -5 (5) x -5 (0) LEFT 25 (40) 15 (25) -5 (5) x 15 (20)   A January 1967 Enlistment Audiometer Examination, noted as ASA: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -5 (5) -10 (0) x -10 (-5) LEFT 5 (20) 5 (15) -10 (0) x -10 (-5) An August 1968 Separation Audiometer Examination: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) 0 (10) -10 (0) -10 (0) 0 (5) LEFT 0 (15) -5 (5) -10 (0) -10 (0) -10 (-5) The Board notes that the separation examination does not denote which standard was used to determine the readings. The Veteran’s representative has argued that this significant improvement in hearing at separation raises the issue of possible error with the entrance or separation examinations. Pursuant to the Board’s remand, a VA examination was conducted in October 2017. Pure tone thresholds, in decibels, were as follows:   HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 25 25 40 LEFT 35 45 25 35 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 98 percent in the left ear. The examiner noted sensorineural hearing loss in both ears. The examiner noted the Veteran’s reported history of military noise exposure from artillery, weapons, heavy equipment, and radio. The Veteran denied hearing protection during service. The Veteran also reported occupational noise exposure from working as a coal miner for 34 years, with exposure to machinery and heavy equipment. The Veteran reported that hearing protection was typically used for this. The Veteran also reported recreational noise exposure from lawn equipment while caring for his own lawn, with hearing protection worn. The examiner opined that the Veteran’s right and left ear hearing loss was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service, stating: An enlistment exam dated 11/9/66 documented hearing sensitivity within normal limits at all frequencies in both ears. A separation exam dated 8/2/68 documented hearing sensitivity within normal limits at all frequencies in both ears. No significant, positive threshold shifts are noted from the time of enlistment to the time of separation from service. In 2005, IOM investigated the evidence for delayed-onset hearing loss following hazardous noise exposure and found insufficient evidence to support the existence of delayed-onset hearing loss. More recent studies, including research by Dr. Sharon Kujawa, have revealed that there is some evidence that delayed-onset hearing loss may occur in rodent subjects well after hazardous noise exposure has stopped. This line of research has led to speculation that similar effects may occur in humans. However, findings in rodent studies cannot necessarily be extrapolated to human subjects, given the genetic and physiological differences that exist between humans and rodents. There have been many instances of lines of research yielding results in rodent subjects that cannot be replicated in human subjects. At this time, this examiner’s understanding is that there have been no peer-reviewed scientific studies demonstrating clear evidence for the existence of delayed-onset hearing loss in humans. Therefore, based on a review of this Veteran’s c-file and the pertinent literature as it is currently understood, it is this examiner’s opinion that this Veteran’s hearing loss is not at least as likely as not related to military service, as documentation in the c-file shows no significant positive shifts in hearing during military service. The examiner provided an addendum statement in August 2018, which states: I have re-reviewed the exams in question, and in this case, the enlistment exam specifies that it was completed using ASA units. The separation exam does not specify whether it was completed using ASA or ISO‐ANSI standards. Therefore, I have compared the exams both with and without converting the separation exam’s thresholds, and found that no significant shifts in hearing are apparent from enlistment to separation regardless of which standards are applied to the separation exam. Therefore, the original opinion provided remains unchanged. The October 2017 VA audiological test confirms hearing loss disability for VA purposes in each ear under 38 C.F.R. § 3.385. The Veteran’s reported history of military noise exposure is credible. The circumstances of his military service are consistent with the noise exposure he has attested to having therein. The question remaining then is whether the evidence establishes a causal connection between the current hearing loss and the Veteran’s in-service noise exposure. The Board has considered the probative evidence of record, including the Veteran’s assertions concerning his in-service noise exposure and hearing loss symptomatology and the medical evidence. The October 2017 VA opinion, along with the August 2018 addendum, which the Board finds probative, does not support a causal relationship between the Veteran’s hearing loss and military service. The VA opinion was based on knowledge of the Veteran’s in-service and post-service history, clinical presentation, and the examiner’s medical training. It was also supported by a sufficient rationale. The examiner described the in-service audiometric testing results, which did not demonstrate a threshold shift in hearing during service. The examiner’s report also noted the Veteran’s exposure to noise during his long post-service career as a coal miner. There is no competent medical evidence to the contrary. The Board has reviewed the Veteran’s written statement that he believed his current hearing loss was related to noise exposure during service. The Board notes that the service treatment records do not show any complaints or sick call visits related to hearing loss, and that the record does not credibly demonstrate that the Veteran had decreased hearing in service or that such symptom was present for decades after service. The Veteran denied hearing loss on the report of medical history he completed in August 1968, shortly before his separation from service. The Veteran’s lay opinion that his current hearing loss is related to noise exposure in service is not competent. This is a complex medical question for which medical expertise is required, particularly in light of his post-service noise exposure and the absence of documented complaints of hearing loss in service or for many years thereafter. See generally Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Further, a hearing loss disability was not affirmatively shown to have been manifested in service or to a compensable degree within one year of discharge. 38 C.F.R. § 3.303 (a), 3.307, 3.309. The earliest medical record regarding complaints/treatment of his hearing loss is dated more than 40 years after service separation. Further, as noted the entrance and separation examinations did not reflect findings or complaints of hearing loss. In light of the lack of complaints of hearing loss symptoms for decades after service, continuity of symptomatology is not established. 38 C.F.R. § 3.303 (b). As the preponderance of the evidence is against the claim, service connection for bilateral hearing loss is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel