Citation Nr: 18155884 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 17-02 099 DATE: December 6, 2018 ORDER The Board having determined that new and material evidence has been received, the claim of entitlement to service connection for a lumbar spine disability is reopened. Entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for depressive disorder, to include as secondary to bilateral hearing loss, is remanded. FINDING OF FACT 1. The Veteran’s claim for entitlement to service connection for a lumbar spine disability was denied in a May 1983 rating decision that was not appealed, nor was any new and material evidence submitted within the appeal period. 2. Evidence received since the final May 1983 rating decision raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a lumbar spine disability. 3. The evidence does not establish a nexus between the Veteran’s current lumbar spine disability and his in-service incident. CONCLUSION OF LAW 1. As new and material evidence has been received, the criteria to reopen the claim for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 5103(a), 5108, 7105; 38 C.F.R. §§ 3.104, 3.156. 2. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Air Force from April 1980 to February 1982. The Veteran initially requested a Board hearing in his December 2016 Form 9, but he subsequently withdrew this hearing request in July 2017. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. 1. New and material evidence for service connection for lumbar spine disability The Board finds that the low threshold for reopening the claim for service connection has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is material, and the Veteran’s claim for service connection for lumbar spine disability is reopened. 2. Service connection for a lumbar spine disability The Veteran contends that his current lumbar spine disability is due to his period of service. Turning to the evidence of record, a June 2016 VA examination confirms a current lumbar spine disability. Therefore, the first element of service connection has been met. Turning to the second element, the Veteran’s service treatment records indicate that the Veteran sought treatment for a back injury in October 1981. Therefore, the second element of service connection has been met. Having met the first two elements of service connection, a nexus must be established. In a February 1983 VA examination, the examiner stated that the Veteran reported back pain since service. The examiner noted physical findings of lumbar muscle strain without residuum. The examiner noted no limitation in range of motion, and no positive findings in imaging studies. In a June 2015 VA examination, the examiner stated that it was less likely than not that the Veteran’s current back disability is due to his period of service. The examiner explained that the Veteran was treated for lower back pain on October 1981, after lifting a heavy bundle of rope. The examiner noted that the diagnosis was mild lumbar spine sprain. The examiner reported that the Veteran was seen three days later, and pain was not getting better. The examiner reported that the Veteran was then treated with seven days profile with no prolonged standing or driving. The examiner noted that lumbar spine x-ray was normal in 1981. The examiner further noted that the separation examination in 1982 was negative for back complaints. The examiner stated that the 1983 VA examination indicated that the imaging study was negative with a normal lumbar spine x-ray. The examiner further noted that the Veteran was involved in a motor vehicle accident in 1985, injuring his back, requiring hospital visit and treatment. The examiner noted that records of this incident were not available to review at the time of examination. The examiner reported that, per the Veteran’s statement, he had crushed discs at that time and was advised for surgery. The examiner found that current MRI report revealed mild osteoarthritis that is usually age-related, as per medical literature. For these reasons, the examiner concluded that the Veteran’s current osteoarthritis of spine and residuals were less likely than not incurred in or caused by the claimed in-service injury. In a June 2016 VA examination, the examiner stated that it was less likely than not that the Veteran’s current lumbar spine disability was related to his period of service. The examiner stated that, while the Veteran was active duty Air Force, he had a lumbar strain that was evaluated and treated in 1981. The examiner noted that the Veteran was treated conservatively and had a follow-up appointment three days later. The examiner further noted that the medical profile expired seven days later, and the Veteran was not seen for his back again while on active duty. The examiner stated that the previous VA examination noted that the Veteran was involved in a motor vehicle accident in 1985 after active duty and injured his back. The examiner determined that, although the Veteran had lumbar spine strain in service, it appears to have been a single episode and is not a chronic condition. The examiner reiterated that the Veteran was not evaluated again prior to the end of active service for complaints of back pain. The examiner therefore concluded that the Veteran’s current osteoarthritis of spine and residuals were caused post-service. After review of the evidence of record, the Board finds that the evidence of record is insufficient to establish a nexus such that service connection would be warranted. The medical evidence of record weighs against a finding that the Veteran’s in-service incident is related to his current disability. Moreover, the evidence indicates that an interceding incident is likely to have resulted in the Veteran’s current disability. As there is no medical evidence to the contrary, the third element of service connection has not been met. Therefore, service connection is not warranted. The Board acknowledges the December 2017 correspondence in which the Veteran’s representative asserted that the Veteran’s statements of back pain chronicity since service have not been considered. However, it is evident that the medical examiners have considered his statement of back pain, but the medical evidence indicates a different etiology for the Veteran’s current disability. The Board notes that although the Veteran is competent to describe his symptoms, he is not competent to determine the etiology of a lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board also acknowledges the representative’s contention that there is over emphasis on the Veteran’s statements against self-interest. The Board notes that all evidence is weighed for probative value. Here, there is no evidence to suggest that the Veteran’s statements regarding a 1985 post-service incident is not credible. Therefore, the statement has been properly weighed in totality with the evidence of record. Finally, in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the evidence weighs against a finding of service connection, this doctrine is not applicable. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is due to service. In September 2016, the Veteran was afforded a VA examination. The examiner determined that the hearing loss was less likely than not due to his period of service. The examiner, in part, noted that there were no significant shifts in audiometric thresholds during service as a premise for the conclusion reached. The Veteran’s representative subsequently submitted a general treatise to support the claim that the Veteran’s exposure to jet fuel may be the cause of his hearing or comprehension difficulties. The representative also submitted a general treatise suggesting that shifts in high frequency thresholds may indicate an onset of hearing loss. As there is no medical opinion of record regarding this theory of service connection, a remand is necessary. 2. Service connection for depressive disorder, to include as secondary to bilateral hearing loss, is remanded. The Veteran also contends that his depressive disorder is due to his period of service. He specifically asserts that his depressive disorder is secondary to his hearing loss. As the outcome of the Veteran’s claim for service connection for bilateral hearing loss would affect the claim of service connection for the Veteran’s depressive disorder, this matter is inextricably intertwined. Thus, the issue is remanded pending adjudication of the claim for service connection for bilateral hearing loss. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: Send the Veteran’s claims file to an appropriate examiner for an addendum opinion. The examiner should determine the nature and etiology of the Veteran’s hearing loss. The claims file should be made available and reviewed by the examiner. The examiner shall consider all other medical records associated with this file during review, including discussion of the Veteran lay statements regarding the onset of symptoms and the 2012 American College of Occupational & Environmental Medicine Noise Induced Hearing Loss study regarding jet fuel exposure. The examiner is asked to offer the following opinion: Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s hearing loss was manifested in, caused by, or is otherwise etiologically related to his period of service. In rendering this opinion, the examiner should determine if there was a significant shift in audiometric threshold during service, to include high frequency measurements. The examiner should also consider and discuss whether this Veteran’s exposure to jet fuel caused his current hearing disability. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ford, Associate Counsel