Citation Nr: 18154034
Decision Date: 11/28/18	Archive Date: 11/28/18

DOCKET NO. 16-55 692
DATE:	November 28, 2018
ORDER
Entitlement to service connection for lumbar spine spondylosis, mild disc degeneration is denied.
Entitlement to service connection for bilateral sensorineural hearing loss (SNHL) is denied.
Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol use disorder is denied.
FINDINGS OF FACT
1. The Veteran’s lumbar spine disability was not manifested in service, degenerative arthritis of the lumbar spine was not manifested in the first post-service year, and the Veteran’s current lumbar spine disability is not shown to be related to his service or injury therein.
2. The competent medical evidence does not demonstrate that the Veteran has bilateral hearing loss as defined by VA regulation.
3. The probative evidence of record reflects PTSD symptoms most consistent with an evaluation of a 70 percent disability rating, with no evidence of total occupational and social impairment.
CONCLUSIONS OF LAW
1. The criteria for service connection for a lumbar spine disability have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309.
2. The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385, 4.85 Diagnostic Code (DC) 6100.
3. The criteria for an initial disability rating in excess of 70 percent for PTSD have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.130, Diagnostic Code (DC) 9411.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active military service from April 1978 to September 1989.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the VA Regional Office (RO) in San Diego, California.
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
1. Entitlement to service connection for lumbar spine spondylosis, mild disc degeneration
The Veteran contends that his current spine condition is attributable to his active service.
The Veteran’s service treatment records (STRs) are negative for complaints, diagnosis, or treatment of sinusitis during active service. During service in May 1979, the Veteran claims to have been sitting in the navigator seat on an armored vehicle when it struck a tree trunk, throwing him out of his seat. Subsequently, the Veteran claims to have developed back pain. The Veteran also claims to have fallen and hit his back in the early 1980s. See May 2015 VA examination. An April 1983 medical report indicates that the Veteran did not have spine problems or recurrent back pain at the time. In August 1985, he complained of a back injury for one month and was assessed with mechanical low back pain.  He also did complain of back pains on one occasion in October 1988, but at that time the assessment concerned an upper respiratory infection and a right-sided pectoral muscle strain.
Private treatment records indicate that the Veteran had Harrington rods placed in his spine after a motor vehicle accident in 1991. Post-service private treatment records reflect treatment for back and spine pain as early as December 2000. See May 2007 private treatment records. In June 2010, the Veteran reported suffering from mild lumbar pain.
In May 2015, the Veteran underwent a VA examination, with an examiner who reviewed the claims file.  The examiner determined that the claimed low back condition was less likely than not incurred or caused by an in-service injury, event, or illness.  In providing a rationale for this opinion. the examiner referenced the Veteran’s documented in-service mechanical low back pain but also noted that there was no other documented evidence indicating chronic and ongoing back complaints while in service.
The Veteran contends that his current back condition is a result of the accidents he suffered in service. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the March 2015 VA examination opinion. Notably, the examiner reviewed the claims file, conducted a through examination, and supported the medical opinion with a rationale. There is no other competent medical opinion of record supporting the Veteran’s claim.
In summary, the preponderance of the evidence of record indicates that the Veteran’s current spine and back condition is unrelated to his active service. Accordingly, service connection is denied.
In reaching the above conclusion, the Board has considered the applicability of 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 this appeal.  38 U.S.C. § 5107(b).
2. Entitlement to service connection for bilateral hearing loss
The Veteran contends that his current hearing loss is attributable to his active service. 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, 4000 Hertz is 40 decibels (dB) or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
The Veteran’s service treatment records (STRs) are negative for complaints, diagnosis, or treatment of hearing loss during active service. During service, the Veteran underwent audiometric testing in March 1978, February 1979, and in April 1983, which all revealed hearing scores under VA disability thresholds, per 38 C.F.R. § 3.385. No separation examination report is on file. The Veteran served a Single Channel Radio Operator and used hearing protection during service. See March 2015 VA examination.
During the Veteran’s May 2015 VA examination, the Veteran’s audiometric scores (dB) were as follows:
 	 	 	HERTZ	 	 
Mar. 2015 	500	1000	2000	3000	4000	Avg.
RIGHT	20 	25 	20 	25 	20 	22.5
LEFT	20 	15 	20 	25 	20 	20

Maryland CNC scores were 100 percent for the right ear and 96 percent for the left ear. The VA examiner opined that the Veteran did not meet the VA criteria for a diagnosis of a bilateral hearing loss disability due to a lack of pathology, and, in comparing these results to the 38 C.F.R. § 3.385 criteria, the Board agrees.
In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms, such as difficulty hearing or understanding others, but does not have the training or credentials to provide a competent opinion as to whether he suffers from hearing loss for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the May 2015 VA examination findings and opinion. There is no other competent medical opinion of record supporting his claim.
In summary, the preponderance of the evidence of record indicates that the Veteran’s current hearing loss does not meet VA disability criteria. In the absence of a current disability for VA purposes, the claim must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992);
In reaching the above conclusion, the Board has considered the applicability of 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 this appeal.  38 U.S.C. § 5107(b).
3. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol use disorder
In June 2015, the RO granted the Veteran’s claim for service connection for PTSD and assigned him a 70 percent rating effective February 7, 2014. In December 2015, the Veteran submitted a claim for his PTSD to be reevaluated alongside new evidence. In January 2016, the RO assigned the Veteran a temporary 100 percent rating for a period of hospitalization, but otherwise continued the Veteran’s 70 percent rating. In February 2016, the Veteran submitted a Notice of Disagreement (NOD) with this second rating decision and appealed the claim to the Board. While no NOD was submitted regarding the 2015 rating decision, the Veteran did submit new and material evidence with his new claim, including a new lay statement in December 2015 and additional treatment records. Consequently, the proper scope of the appeal includes the Veteran’s first claim for service connection and should be properly characterized as a claim for a higher initial evaluation. See Young v. Shinseki, 22 Vet. App. 461, 466-68 (2009).
The Veteran contends that his service-connected PTSD warrants a higher initial evaluation than his current 70 percent rating.
Under the General Rating Formula for Mental Disorders, the criteria for a 70 percent rating are occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411.
The criteria for a 100 percent rating are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, DC 9411. There is no evidence of other symptomatology of similar frequency or severity as the symptoms contemplated by a 100 percent rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). 
The Board has reviewed the Veteran’s post-service VA treatment records, as well as his May 2015 VA examination report, and finds that they are negative for complaints, treatment, or diagnosis of hallucinations, inability to perform activities of daily living, disorientation as to time or place, gross impairment in thought processes or communication, or memory loss. Significantly, there is no evidence of record whatsoever of total occupational and social impairment. As the preponderance of the evidence shows that the Veteran’s symptoms best fit the criteria contemplated by a 70 percent rating, the Veteran’s claim for a 100 percent rating must be denied, and his 70 percent initial evaluation continued.
In reaching the above conclusions, the Board has considered the applicability of 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 this appeal.  38 U.S.C. § 5107(b). 
In this appeal, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009).
 
A. C. MACKENZIE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Evan Thomas Hicks