Citation Nr: 18158152 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-51 746 DATE: December 14, 2018 ORDER Service connection for back condition is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s back condition did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran’s preexisting bilateral hearing loss was not aggravated by his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for back condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b)(2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a)(2018). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b)(2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to February 1989 and from February 1991 to August 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in March 2017. A transcript of the hearing is associated with the claims file. Service Connection 1. Service connection for back condition The Veteran contends that his current back condition is causally related to his in-service lifting injury in April 1991. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has lumbar osteoarthritis, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The Veteran was first diagnosed with arthritis in 2013, decades after his separation from service and decades outside of the applicable presumptive period. A November 2010 x-ray showed mild arthritic changes of the lumbar spine. As such, there is no showing of arthritis within the presumptive period. Service connection for back condition 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 back condition 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). While the Veteran is competent to report experiencing symptoms of back pain consistently since service, the Board finds the reports of continuity of symptomatology not credible. His August 1991 separation examination noted “acute lumbar strain resolved per ortho” and the accompanying Report of Medical History noted resolving back pain. The record does not contain any treatment records thereafter until July 1993, when the Veteran suffered a severe lumbar strain with disc herniation. The Veteran again reported severe back pain in February 1994 after an eight-hour shift. He was diagnosed with chronic back sprain. His March 1994 Reserves examination notes that he was still under doctor’s care for this herniation. Likewise, his March 1995 annual certificate of physical condition noted ongoing complaints and treatment for back injury. At the time of his April 1994 initial evaluation for the work performance program, he reported the 1993 injury and a 1973 fall from 10 feet that resulted in two broken vertebrae. He did not mention the in-service lifting injury. This is significant because the Veteran’s failure to mention the in-service injury at the time of this evaluation contradicts and subsequent assertions that he had experienced ongoing pain since that April 1991 injury. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997)(observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran has submitted lay statements from his coworker, his sister, and his mother, attesting to his ongoing back pain. With regard to his coworker’s statement, she reported working with the Veteran at Walmart. The Veteran’s March 1994 Report of Medical History notes that he was working for the Town of Walkerton. In his Social Security records, he reported working at Walmart from 2007 to 2012, well after his post-service injury. Therefore, this coworker is not competent to provide lay evidence of ongoing symptoms since the Veteran’s separation from service. While his mother and sister are presumed to have been in contact with the Veteran during the period between his separation from service and his subsequent post-service work injury, there is no evidence to suggest that either are competent to diagnose his low back condition or to differentiate between his “resolving back pain” at the time of his initial separation and later symptoms associated with the post-service disc herniation. The issue is medically complex, as it requires medical knowledge to differentiate among various causes of back pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The July 2013 VA examiner opined that the Veteran’s back condition, diagnosed as chronic low back pain and lumbosacral osteoarthritis, is not at least as likely as not related to an in-service injury, event, or disease, including the April 1991 lifting injury. The rationale was that the current lumbosacral condition was more likely to be associated with degenerative joint disease secondary to age-related changes and noting the intervening injury resulting in disc bulge. The Veteran has linked his current back complaints to his in-service lifting injury. The record confirms that he worked as a corpsman during his active duty service and he reported continued work as an emergency medical technician for two years thereafter. Nevertheless, he testified that he had not worked in the medical field since shortly after his separation. By contrast, the July 2013 medical examiner is a physician with more extensive medical training and current experience. This renders this examiner’s opinion more probative evidence. As such, the weight of the evidence is against a finding of a medical nexus. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for back condition and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for bilateral hearing loss The Veteran asserts that his bilateral hearing loss is causally linked to either a February 1984 scuba diving injury or noise exposure in service. Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b). At his February 5, 1981 enlistment examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 45 15 LEFT 10 10 35 30 15 As such, preexisting hearing loss is shown. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993)(noting that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such 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; 38 C.F.R. § 3.306 (a); see Akins v. Derwinski, 1 Vet. App. 228 (1991) (holding that VA must point to a specific finding that increase in disability is due to the natural progress of the condition). In this case, the Veteran’s hearing loss fluctuated wildly among the documented in-service audiograms. On February 26, 1981, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 75 75 55 LEFT 5 5 25 25 20 The Board notes that this audiogram has been crossed out without any additional explanation. On March 19, 1981, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 40 35 20 LEFT 0 10 35 35 20 On February 15, 1984, after scuba diving the night before, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 45 35 35 LEFT 5 15 45 35 25 At his August 1991 separation exam, following his second and final period of active duty service, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 20 30 25 LEFT -5 -5 -5 5 25 The November 2016 VA examiner noted that the Veteran’s hearing loss fluctuated during his active duty military service, but found no permanent threshold shift at the time of his separation. This examiner further opined that the Veteran’s bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including the February 1984 scuba incident or noise exposure. Again, the rationale was that despite the hearing fluctuations noted in service, the Veteran’s bilateral hearing had not permanently shifted at the time of his separation examination. The Veteran has linked his current hearing loss to his in-service scuba injury and/or noise exposure. The record confirms that he worked as a corpsman during his active duty service and he reported continued work as an emergency medical technician for two years thereafter. Nevertheless, he testified that he had not worked in the medical field since shortly after his separation. By contrast, the November 2016 medical examiner is a physician with more extensive medical training and current experience. This renders this examiner’s opinion more probative evidence. As such, the weight of the evidence is against a finding of a medical nexus. (Continued on the next page)   For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for bilateral hearing loss and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Houbeck, Counsel