Citation Nr: 18157531 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-45 264 DATE: December 12, 2018 ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. Service connection for a lower back disability is denied. Service connection for a left hip disability is denied. Service connection for a right elbow disability is denied. FINDINGS OF FACT 1. The Veteran’s current bilateral hearing loss did not have onset during his service, was not caused by his service, and did not manifest within one year of separation from service. 2. The Veteran’s current tinnitus did not have onset during his service, was not caused by his service, did not manifest within one year of separation from service. 3. The Veteran’s current degenerative disc disease (DDD) of the lumbar spine did not have onset during his service, was not caused by his service, and did not manifest within one year of separation from service. 4. The Veteran’s current osteoarthritis of the left hip did not have onset during his service, was not caused by his service, and did not manifest within one year of separation from service. 5. The Veteran’s current degenerative joint disease (DJD) of the right elbow did not have onset during his service, was not caused by his service, and did not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). 3. The criteria for service connection for a lower back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). 4. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). 5. The criteria for service connection for a right elbow disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1972 and February 1974. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases, including sensorineural hearing loss, tinnitus, and arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2017). 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. 1. Entitlement to service connection for hearing loss and tinnitus. The Veteran claims to have bilateral hearing loss and tinnitus due to noise exposure during service. The question for the Board is whether the Veteran has a chronic disability that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. A March 2013 VA examination reflects that the Veteran has a current diagnosis of bilateral sensorineural hearing loss. Audiological tests reviewed thresholds of 40 dB or greater in both ears. See 38 C.F.R. § 3.385. He reported tinnitus symptoms. The Board notes that although a diagnosis of tinnitus was not provided, the Veteran is competent to provide lay evidence of tinnitus as this condition is observable by his own senses. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, these diagnoses satisfy the first element of a service connection claim. The Board concludes that, while the Veteran has sensorineural hearing loss and tinnitus, which are chronic diseases, they were not chronic in service or manifested to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Notably, the record does not include diagnose of hearing loss or tinnitus during active service or within one year of the Veteran’s separation from active duty service in February 1974. Although the Veteran testified that he had ringing symptoms 1975 or 1976 within a year after service, he did not seek any treatment for his conditions until filing his application for benefits in January 2011. Notably, he has provided inconsistent statements regarding the onset of symptoms. At the March 2013 examination, he reported having ringing symptoms over the last few years. Similarly, he reported that his hearing loss had significantly declined over the past few years. Based on the foregoing, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307 (a)(3). Service connection for hearing loss and tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hearing loss and tinnitus and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Veteran’s DD Form 214 indicates that his military occupational specialty (MOS) was a recovery specialist and tow truck operator. At the hearing, he testified that he was exposed to excessive noise exposure from tanks and artillery firing during service. The Veteran is competent to report his in-service noise exposure and his contentions are consistent with the circumstances of his service. 38 U.S.C. § 1154 (a) (2012). Therefore, in-service noise exposure is conceded. The remaining question is whether the Veteran’s hearing loss and tinnitus disabilities were incurred in or as a result of his in-service noise exposure. Service treatment records do not contain any complaints of or treatment for hearing loss or tinnitus symptoms. On November 1973 separation, clinical evaluation of the ears was normal. Audiometer testing was performed and a hearing diagnosis was not provided. The Veteran was afforded a VA examination in March 2013. The Veteran reported post-service work as a factory worker without hearing protection for many years. He stated that right ear hearing loss had significantly declined over the last few years. He also reported hunting without hearing protection. The examiner opined that current hearing loss was not at least as likely as not caused by or the result of service. As rationale, the examiner referenced normal audiological tests at entrance and separation from service. There were no significant threshold shifts noted. Instead, the examiner attributed the Veteran’s current hearing loss to his post-service work as a factory worker for many years during which time he did not use hearing protection devices As for tinnitus, the Veteran reported constant bilateral tinnitus that he has noticed over the last few years. The examiner opined that tinnitus is at least as likely as not a symptom associated with the Veteran’s hearing loss, as tinnitus is known to be a symptom associated with hearing loss. As rationale, the examiner against referenced the Veteran’s post-service work in a factory for many years without hearing protection and normal entrance and separation audio tests during service. The Board finds the examiner’s opinion to be well reasoned and thorough, having considered the entire record, including service treatment records, medical, as well as the Veteran’s historical accounts and providing specific medical evidence for the opinion rendered. Further, the opinion is consistent with post-service medical records showing that the Veteran first complained of hearing loss and tinnitus disabilities when he filed his application for benefits in January 2011, more than 35 years after separation from service. The Board finds that if the Veteran had continuous symptoms of hearing loss or tinnitus immediately after service, then he would have sought treatment for these conditions at an earlier date. Therefore, the medical opinion warrants probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that “most of the probative value of a medical opinion comes from its reasoning” and that “[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions”). Notably, the claims file does not contain any contradictory medical opinions. To the extent the Veteran claims that he has had continuous hearing loss and tinnitus symptoms since service, he is competent to do so. Notably, he has provided inconsistent statements regarding the onset of symptoms. At the March 2017 hearing, he reported an onset of symptoms within a year of separation from service, while hunting. Specifically, he reported that he was on a hunting trip without hearing protection when he first experienced ringing symptoms. As indicated, on March 2013 examination he reported having hearing loss and tinnitus symptoms over the last few years. Notably, he also reported significant post-service noise exposure as a factory worker for many years without hearing protection, and hunting without hearing protection. The first documentation of hearing loss and tinnitus disabilities was on March 2013 examination. To the extent that he alleges continuous symptoms since service he did not file a claim until January 2011, more than 35 years after service. Based on all of these facts, the Board finds that the Veteran’s statements as to the onset and continuity of symptoms not credible. The Board must conclude that the weight of the evidence is against the claims for service connection for hearing loss and tinnitus. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt provision does not help the Veteran. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for hearing loss and tinnitus are not warranted. 2. Entitlement to service connection for lower back and left hip disabilities are denied. The Veteran claims that he has current lower back and left hip disabilities due to two in-service injuries. At the March 2017 hearing, he testified that he injured his back and left hip on a machine mount during service. As for the second injury, he testified that a few months prior to separation he slipped and fell while trying to board a tank causing injury to his lower back and left hip. He did not seek treatment for any of these conditions during service, but claims that he reported the injuries to his superiors. The record shows current diagnoses of DDD of the lumbar spine and osteoarthritis of the left hip. Accordingly, the first element of service connection, a current disability, is met. The Board concludes that, while the Veteran has DDD of the lumbar spine and osteoarthritis of the left hip, which are chronic diseases, they were not chronic in service or manifested to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Notably, the record does not include a diagnosis of either condition during active duty service or within one year of the Veteran’s separation from active duty service in February 1974. The Veteran did not complain of lower back pain until 1985 and left hip pain until 2002, many years after separation from service. Based on the foregoing, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307 (a)(3). Service connection may still be granted on a direct basis; however, the preponderance of the evidence is against the claims. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Service treatment records contain no complaints of or treatment for lumbar spine and left hip conditions. On November 1973 separation, clinical evaluations of the spine and lower extremities were normal. Post-service private medical records document treatment for lower back pain starting in December 1985. During this visit, the Veteran attributed lower back pain to a four-wheel all-terrain vehicle accident. Medical records document April 1987 and October 2004 motor vehicle accidents causing spinal trauma. As for the left hip, the first mention of pain is contained in January 2002 private medical records when the Veteran was diagnosed with moderately advanced arthritic changes left hip. October 2004 magnetic resonance imaging (MRI) studies showed left hip disease. As indicated, at the March 2017 Board videoconference hearing, the Veteran testified that his lower back and left hip conditions are related to two in-service injuries. Pertinent to the lower back, he testified that he initially sought treatment approximately 3 to 4 years after service. He testified that he did not seek treatment for his left hip until 2002 and he underwent a left hip replacement procedure in 2014. He stated that he waited to file claims for service connection because he was not aware that he could submit claims. Considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for lower back or left hip disabilities because there is no nexus to service. As for direct service connection, service treatment records are negative for any report of or treatment for these conditions. Significantly, service treatment records document treatment for other medical conditions, but not lower back or left hip disabilities. Hence, it is reasonable to conclude that if he had such disabilities or injuries he would have sought treatment because he sought treatment for other medical conditions. Although the Veteran claims that his disabilities are due to two in-service incidents, on November 1973 separation, clinical evaluations were normal. The first mention of lower back pain was in 1985, more than 10 years after service, when the Veteran attributed lower back pain to a four-wheel all-terrain vehicle accident. He was subsequently in two additional motor vehicle accidents in April 1987 and October 2004 causing spinal injuries. As for the left hip, the first mention of pain and a diagnosis was in 2002, approximately 28 years after service. Although the presence of symptoms is not the same thing as seeking treatment for symptoms, this long period of time without evidence of seeking treatment has a tendency to weigh against the claims. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has not identified any outstanding records. The Board finds that the evidence does not establish an in-service injury, disease, or relevant event involving the Veteran’s lower back and left hip disabilities. Therefore, VA has no duty to provide an examination. Accordingly, and based on this evidentiary posture, the Board concludes that a nexus to service is not demonstrated. As such, service connection is not warranted. The only evidence of record suggesting a link or nexus between the Veteran’s current lower back and left hip disabilities and service comes from the Veteran himself. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Although the Veteran contends that his disabilities were caused by service, he has provided conflicting statements regarding the nature and timing of the disability. As indicated, service treatment records are silent for any lower back or left hip injuries. At the hearing, the Veteran attributed his lower back disability to service, however, medical records attribute such pain to multiple motor vehicle accidents. As for the left hip, there are no left hip complaints until 2002. The Veteran himself testified that he did not seek treatment until 2002 when he started to have left hip pain. As such, his statements regarding the onset of his disabilities are lacking in probative value. Accordingly, the preponderance of the evidence is against granting service connection for lower back and left hip disabilities, on any theory of entitlement raised by the Veteran or the record. Thus, there is no reasonable doubt to be resolved in the Veteran’s favor, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a right elbow disability is denied. The Veteran claims that he developed a right elbow disability during service. At the March 2017 hearing, he testified that he injured his right elbow while entering and exiting tanks during service. He also reported sparring and over-extending his right elbow causing injury during service. The Veteran has a current diagnosis of DJD of the right elbow. Accordingly, the first element of service connection, a current disability, is met. The Board concludes that, while the Veteran has DJD of the right elbow, which is a chronic disease, it was not chronic in service or manifested to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Notably, the record does not include a diagnosis of the condition during active duty service or within one year of the Veteran’s separation from active duty service in February 1974. A diagnosis of DJD of the right elbow was not provided until 2010, many years after separation from service. Based on the foregoing, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307 (a)(3). Service connection may still be granted on a direct basis; however, the preponderance of the evidence is against the claim. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Veteran testified that he had a right arm disability prior to service that had since healed. Specifically, he reported that he broke his right arm at the age of 5 years old. For the purposes of 38 U.S.C. § 1110, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease exited before acceptance and was not aggravated by such service. 38 U.S.C. § 1111. This is referred to as the presumption of soundness. Id. For disorders noted on entrance into active service, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Once it is demonstrated that there was an increase in the severity of a preexisting injury during active service it is presumed to have been aggravated by such service; the presumption can be rebutted by clear and unmistakable evidence that the worsening was due to the natural progress of the condition. See 38 C.F.R. § 3.306. On February 1972 enlistment, in the Report of Medical History, the Veteran marked “yes” to broken bones and noted that he had a history of a broken arm. In the notes section, a physician scribed that the Veteran had a history of fracture to his right arm. Clinical evaluation of the upper extremities was abnormal, but a right elbow disability was not noted. Service treatment records do not contain a diagnosis of or treatment for a right elbow disability. Based on the foregoing, as a right elbow disability was not noted at entrance, the Veteran was presumed sound when entering service and the case is one for direct service connection. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of DJD of the right elbow, the preponderance of the evidence weighs against finding that the Veteran’s disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records contain no complaints of or treatment for a right elbow disability. On November 1973 separation, clinical evaluation of the upper extremities was normal. In December 1973, he reported a boxing injury. X-rays of the right arm were within normal limits. Post-service starting in 1985 the Veteran sought private chiropractic treatment for various musculoskeletal disabilities, but no complaints of right elbow pain or disability. VA records show the Veteran did not seek treatment for a right elbow disability until November 2010, more than 25 years after his separation from service. In January 2011 he reported a hyperextension injury causing right elbow swelling. He reported a history of loose bodies in the right elbow. During an April 2011 visit, the Veteran reported a history of right elbow trauma. He stated that he injured his right elbow on a tank during service, and again approximately 2 years later when he “threw something and felt [a] pop in anterior elbow/biceps region.” He complained of right elbow pain. X-rays showed DJD of the right elbow and arthroscopy was recommended. November 2011 VA treatment records note a right elbow deformity. Considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for a right elbow disability because there is no nexus to service. As for direct service connection, service treatment records are negative for any report of or treatment for a right elbow disability. Although the Veteran claims that his current right elbow disability is due to tank and sparring injuries during service, December 1973 right arm x-rays were normal and on separation clinical evaluations were also normal. The first mention of right elbow pain and associated diagnosis was in 2010, more than 25 years after service. Although the presence of symptoms is not the same thing as seeking treatment for symptoms, this long period of time without evidence of seeking treatment has a tendency to weigh against the claims. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has not identified any outstanding records. The Board finds that the evidence does not establish an in-service injury, disease, or relevant event involving the Veteran’s right elbow. Therefore, VA has no duty to provide an examination. Accordingly, and based on this evidentiary posture, the Board concludes that a nexus to service is not demonstrated. As such, service connection is not warranted. While the Veteran is competent to report having experienced symptoms of arm pain in and since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of DJD of the right elbow. The issue is medically complex, as it requires knowledge of symptoms that occurred in service and a diagnosis provided many years after service, as well as the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence of record. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel