Citation Nr: 18160122 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 17-04 675 DATE: December 21, 2018 ORDER Entitlement to service connection for a lumbar disorder is denied. Entitlement to service connection for a hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record is against finding that a lumbar disability is etiologically related to service, against finding that lumbar arthritis was compensably disabling within a year of separation from active duty, and against finding that it was caused or is aggravated by a service-connected disability. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral hearing loss due to a disease or injury in service, and against finding that a sensorineural hearing loss was compensably disabling within one year following separation from active duty. 3. The preponderance of the evidence is against finding that the Veteran has tinnitus due to a disease or injury in service, and against finding that tinnitus was compensably disabling within a year of separation from active duty. CONCLUSIONS OF LAW 1. A lumbar disability was not incurred or aggravated during service, lumbar arthritis may not be presumed to have been so incurred, and a lumbar disorder was not caused or permanently aggravated by a service-connected disability. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. A bilateral hearing loss disability was not incurred in or aggravated by service, and sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 3. Tinnitus was not incurred in or aggravated by service, and it may not be presumed to have been so incurred. 38 U.S.C. §§ 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1958 to September 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For a chronic disease such as arthritis, sensorineural hearing loss and tinnitus service connection may be established if the disorder was manifested to a compensable degree within one year from the date of separation from active duty even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lumbar disorder The Veteran contends that he has a lumbar disorder that is the result of an inservice injury. 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 disk space narrowing, and while a lumbar strain occurred during service, the preponderance of the evidence weighs against finding that the Veteran’s current diagnosis of disk space narrowing began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a), (d). Hence service connection must be denied. A review of the service treatment records reveals that the appellant was treated for a lumbar strain in July 1959 and July 1961. At a July 1961 separation examination the claimant’s spine was clinically evaluated as normal. Postservice VA treatment records show the Veteran was diagnosed with diffuse idiopathic skeletal hyperostosis in December 2012, degenerative changes of the thoracic spine in March 2015, and disk space narrowing in March 2017, i.e., each over five decades after his separation from active duty. While the Veteran is competent to report having experienced symptoms of intermittent lumbar pain since service, he is not competent to provide a diagnosis in this case or determine that his inservice symptoms were manifestations of any currently diagnosed lumbar disorder. The issue is medically complex, and it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau. Further, while a June 2015 VA examiner noted the appellant’s report that he was continually lifting heavy objects in the military, and that he had back pain in service and since, the June 2015 VA examiner opined that the Veteran’s lumbar disorder was not at least as likely as not related to an in-service injury, event, or disease, including the 1959 and 1961 instances of lumbosacral strain. The rationale was although there is evidence of inservice lumbar injuries, there is no related currently diagnosed lumbar injury. The Veteran’s separation examination contained no abnormal findings and he finished the examination with no objective pain or limitations noted. The examiner opined that there was not enough medical evidence contained, in the over five-decade gap since the last instance of lumbar strain, in the file to provide a positive nexus. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Significantly, there is no competent evidence to the contrary. While the Veteran believes his lumbar disorder is related to an in-service injury or disease, including the few reported instances of a lumbar strain while in service, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau. Consequently, the Board gives more probative weight to the provided VA medical opinion. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that a lumbar disorder was not incurred in or otherwise caused by active service, and lumbar arthritis may not be presumed to have been incurred therein. The claim is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Hearing loss and Tinnitus The Veteran asserts that he currently has a bilateral hearing loss and tinnitus which were caused by exposure to acoustic trauma during active duty service. 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 bilateral hearing loss and tinnitus, and while inservice exposure to noise may have occurred, the preponderance of the evidence weighs against finding that his bilateral hearing loss or tinnitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b). Initially, the Board notes that 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. See Hensley v. Brown, 5 Vet. App. 155 (1993). The service treatment records contain a hearing test report dated in February 1961 that tested the Veteran’s hearing acuity. The recorded puretone thresholds in decibels at the tested frequencies did not reveal a hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. Similar findings showing no hearing loss for VA compensation purposes were made at the claimant’s July 1961 separation examination. VA medical records include a July 2014 note related to the appellant’s hearing difficulties. A hearing loss was noted, and hearing aids were prescribed in September 2014. A June 2015 VA examination reflects audiometric findings establish the presence of a current bilateral hearing loss disability under 38 C.F.R. § 3.385. The June 2015 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The Veteran was not diagnosed with tinnitus, but he has reported tinnitus on his claim form and since reported it to a civilian examiner. While in-service noise exposure is likely, the preponderance of the evidence weighs against finding a relationship between the Veteran’s current bilateral hearing loss and tinnitus, and his noise exposure or acoustic trauma during his active service. Service treatment records reflect no complaints of tinnitus during service. The records note an injury to the right ear but the appellant’s hearing was not noted to be impaired. The records also note drainage of the right ear few years later. According to the July 1961 separation examination, clinical evaluation of the Veteran’s ears did not reveal findings that were consistent with a hearing loss for VA purposes. 38 C.F.R. § 3.385. Accordingly, the Board finds that bilateral hearing loss and tinnitus did not begin inservice. Significantly, there is no competent evidence suggesting that either the Veteran’s hearing loss or tinnitus was manifested to a compensable degree within one year of his separation from active service, and there is no competent evidence linking either to service. The Board acknowledges that the Veteran has implied that his hearing loss and tinnitus have existed since service, however, his lay statements are outweighed by the contemporaneously prepared service treatment records which do not show complaints, findings, diagnoses or treatment for either hearing loss or tinnitus. Moreover, while the appellant is competent to report ringing in the ears and trouble hearing, the preponderance of the most probative evidence weighs against finding that the Veteran’s hearing loss and tinnitus were disabling to a compensable degree within one year of service separation. As neither hearing loss nor tinnitus were noted during service and as the service treatment records show normal hearing, service connection may not be established for hearing loss and tinnitus as chronic diseases based on chronicity in service or a continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). Service connection also is not established on a presumptive basis for hearing loss and tinnitus as neither manifested to a compensable degree within one year of separation, as discussed above. See 38 C.F.R. §§ 3.307 (a), 3.309(a). Supporting this conclusion is a June 2015 VA examination report which includes the examining audiologist’s opinion that it was less likely than not that the Veteran’s hearing loss was caused by or the result of service. A March 2017 private hearing assessment, by Bridgewater balance and hearing, noted hearing loss in both ears, it being worse in the left ear. The examiner related the Veteran’s military history and noted that he now has moderate sensorineural hearing loss in the right ear with profound hearing loss in the left. The examiner also noted that the Veteran indicated tinnitus as a non-bothersome, low level whistle. The private audiologist, however, offered no opinion as to a relationship between the Veteran’s service and his current hearing loss or tinnitus. In a September 2018 VA addendum opinion a VA audiologist opined that it was less likely than not that the Veteran’s tinnitus was cause by an in-service injury, event, or illness. The Veteran did not report tinnitus in-service or following service. The examiner noted that his current hearing loss was less likely than not due to noise exposure. The examiner further opined that “tinnitus is less likely than not due to military noise exposure based on the finding of hearing well within normal limits at exit, limited military noise exposure and significant association between tinnitus, noise exposure and hearing loss.” The June 2015 and September 2018 follow up addendum VA medical opinions are highly probative, as they represent the informed conclusion of a medical professional. The audiologist based her opinion on a review of the Veteran’s medical history and the clinical findings made on examination. They are supported by sufficient explanation that is consistent with the evidence of record. Therefore, they carry significant weight in the Board’s determination. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). While the Veteran may sincerely believe that there is a link between his inservice acoustic trauma and both hearing loss and tinnitus, the June 2015, and September 2018 VA audiologist’s opinions outweigh the appellant’s lay contentions. In this regard, the etiology of his hearing loss and tinnitus is a medically complex determination. Such a determination is not within the province of lay observation because it cannot be perceived through the senses alone. Thus, the determination of the etiology of the Veteran’s hearing loss and tinnitus requires medical expertise and, accordingly, a competent medical opinion. Jandreau, 492 F. 3d at 1376-77. Given the medically complex nature of this determination, the Veteran’s unsupported lay opinion that his hearing loss and tinnitus were caused by in-service noise exposure/acoustic trauma that occurred years prior to its onset is not competent evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In sum, the preponderance of the evidence is against the Veteran’s claims. There is no competent medical opinion that links the Veteran’s current hearing loss and tinnitus with his active service. Consequently, the benefit of the doubt rule does not apply, and service connection for bilateral hearing loss and tinnitus is denied. See 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel