Citation Nr: 1807240	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-16 542	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a lumbar spine disability.

4.  Entitlement to service connection for a lumbar spine disability.

5.  Entitlement to service connection for liver disease (also claimed as hepatitis B).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N.M. Floore, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1976 to October 1979.

This matter comes before the Board of Veterans' Appeals from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina in which the RO reopened and denied the Veteran's previously denied claims for service connection for bilateral hearing loss and unspecified lumbar spine condition (claimed as back pain).  In this decision, the RO also denied service connection for liver disease (also claimed as hepatitis B).

The RO has reopened the claims for service connection for bilateral hearing loss and a lumbar spine disability, but continued the denial from a previous final decision.  The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO.  Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996).

This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.


FINDINGS OF FACT

1.  A June 2009 rating decision denied service connection for bilateral hearing loss and unspecified lumbar condition (claimed as back pain).  The Veteran did not appeal that determination, and it is final.

2.  The evidence associated with the claim subsequent to the June 2009 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss and a lumbar spine disability. 

3.  The preponderance of the evidence shows that the Veteran's bilateral hearing loss was not present in service and manifested many years after service, and is not otherwise related to service.

4.  The preponderance of the evidence shows that the Veteran's mild degenerative disc disease (DDD) of the lumbar spine was not present in service and manifested many years after service, and is not otherwise related to service.

5.  The Veteran's liver disease (also claimed as hepatitis B) was not present in service and is not the result of any disease or injury in service.


CONCLUSIONS OF LAW

1.  The June 2009 rating decision denying service connection for bilateral hearing loss and unspecified lumbar spine condition is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2017).

2.  Evidence received since the June 2009 rating decision to reopen the claims for entitlement to service connection for bilateral hearing loss and unspecified lumbar spine condition is new and material, and the claims are reopened.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017).

3.  The criteria to establish service connection for a bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

4.  The criteria to establish service connection for a disability of the lumbar spine have not been met.  38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

5.  The criteria for service connection for liver disease (also claimed as hepatitis B) are not met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist (Veterans Claims Assistance Act of 2000 (VCAA))

There is no indication in this record of a failure to notify.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities.  38 U.S.C. § 5103A (c)(2).  All records pertaining to the condition at issue are presumptively relevant.  See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)).  In this case, the Veteran has not identified any such treatment records, and it appears that all pertinent and available treatment records have been obtained.  Therefore, no additional development is warranted.  Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).

In regard to the claims to reopen, the duty to assist by arranging for a VA medical examination or medical opinion does not apply unless the claim is, in fact reopened.  38 C.F.R. § 3.159 (c)(4)(iii).  The Veteran was provided VA examinations in December 2012 and October 2013, and medical opinions were obtained in January 2013 and April 2013.  The Board finds the VA examinations and medical opinions to be adequate.

The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable.  He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any notice deficiency.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  VA's duties to notify and assist him with his claim have been satisfied.

II.  New and Material Evidence

The Veteran seeks to reopen his claims of entitlement to service connection for bilateral hearing loss and unspecified lumbar condition (claimed as back pain).  New and material evidence is required in that regard.

New evidence means existing evidence not previously submitted to VA.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a) (2017).

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim.  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).  In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156 (a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108.  Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).  The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

Service connection for bilateral hearing loss and unspecified lumbar condition (claimed as back pain) was denied in a prior June 2009 final rating decision.  At that time, the RO denied the claim on the basis that the Veteran did not have a diagnosis of hearing loss, hearing loss within the meaning of the law was not demonstrated in service, and sensorineural hearing loss was not demonstrated to a compensable degree within one year of service discharge.  Service connection for unspecified lumbar spine condition (claimed as back pain) was denied on the basis that a chronic lumbar spine condition was not demonstrated in service.  The Veteran was provided notice of this determination and did not timely appeal.  Thus, the July 2009 decision is final.

The Veteran requested that his claim be reopened in August 2012.  In a subsequent April 2013 rating decision, the RO reopened the Veteran's claims for service connection for bilateral hearing loss and unspecified lumbar spine condition, and found that service connection on a direct basis was not warranted as the Veteran's bilateral hearing loss and mild degenerative disc disease (DDD) was not incurred in or caused by military service.  The RO found that although current treatment records showed bilateral hearing loss and DDD since 2012, there was no indication that the conditions began in service, were caused by service, or were made permanently worse by service.  The Veteran filed a timely appeal to this decision.

Evidence submitted in connection with the Veteran's claim on appeal, includes VA treatment records, VA examination reports, private medical records, and lay statements.  The VA treatment records and examination reports continue to show that the Veteran has hearing loss; however, these records do not relate the Veteran's hearing loss to service.  The VA treatment records and examination reports do not show that the Veteran's current mild degenerative disc disease (DDD) is related to his service.  Based on the foregoing evidence and in light of the prior evidence of record including the Veteran's service treatment records (STRs), the Board finds that the December 2012 VA examinations and March 2013 addendum opinion sufficient to reopen the Veteran's claims as such evidence contributes to a more complete picture of the circumstances surrounding the origin of the Veteran's bilateral hearing loss and unspecified lumbar condition (claimed as back pain).  However, for reasons outlined below, the Board finds that such evidence is not enough to convince the Board to grant the claim on the merits.

Having reopened the claims of bilateral hearing loss and unspecified lumbar condition (claimed as back pain) on the basis of this new and material evidence, the Board must next determine whether the Veteran would be unduly prejudiced by the Board immediately proceeding with the readjudication of this claim on its underlying merits.  See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (noting that where the Board reopens a claim, but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from the readjudication of the claim); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993) (noting that the Board must consider whether a veteran is prejudiced by a lack of RO consideration of the merits of a claim).

The Board finds that adjudication of the reopened bilateral hearing loss and unspecified lumbar condition (claimed as back pain) claims on a de novo basis is appropriate at this juncture.  A review of the April 2014 statement of the case reflects that the RO reopened the Veteran's hearing loss claim, and considered the service connection claim on the merits.  Further, as to the lumbar spine, although addressing new and material evidence, the RO found that the Veteran's current unspecified lumbar condition (claimed as back pain) was not incurred in or aggravated by service, and explained why.  The Veteran was also provided with the laws and regulations applicable to service connection in the April 2014 document and has submitted argument on the underlying claim.  The November 2012 VCAA letter also provided information on reopening prior final claim and on the underlying merits of the claim.  Thus, the Board's proceeding with the service connection issues, without a remand to the RO, will not prejudice the Veteran.


III.  Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).  Generally, the evidence 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain diseases like arthritis and other organic diseases of the nervous system such as sensorineural hearing loss are considered chronic, per se, and therefore will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258 (2015).

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)).

Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

A.  Bilateral Hearing Loss

The Veteran contends that his bilateral hearing loss is due to service.

For the purposes of applying the laws administered by the 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 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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; see also McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385).

Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., under 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley v. Brown, 5 Vet. App. 155 (1993).  To establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).

The results of the Veteran's December 2012 VA audiological examination confirm that he has sufficient hearing loss in each ear to be considered a disability according to the requirements of 38 C.F.R. § 3.385.  The question remaining is whether his current bilateral hearing loss disability is related to service.

The Veteran's DD 214 reflects that he served on active duty in the U.S. Army from July 1976 to October 1979, and his primary military occupational specialty (MOS) was unit supply specialist.  He served during peacetime and had no combat service.

STRs show that the Veteran had an entrance physical examination dated July 30, 1976.  Audiological evaluation revealed the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
15
15

15
LEFT
20
15
5

15

The Veteran's separation examination dated August 1, 1979 indicated normal hearing bilaterally.  Audiological evaluation revealed the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
0
10
20
LEFT
10
0
0
25
25

On a December 2012 VA examination, audiological evaluation revealed that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
65
70
70
LEFT
15
15
75
80
85

The speech discrimination score was 72 in the right ear and 68 percent in the left ear.  The VA examiner confirmed a diagnosis of sensorineural hearing loss in the right and left ear.  The examiner opined (with 50% probability or greater) that the Veteran's hearing loss was not caused by or a result of an event in military service.  The examiner provided the rationale that the Veteran's entrance physical examination dated July 30, 1976 indicated normal hearing bilaterally.  His separation physical examination dated August 1, 1979 also indicated normal hearing with no change indicated in either ear comparing the two hearing examinations.  The examiner remarked that the Veteran served in the Army from 1976 to 1979 as a supply clerk.  He was exposed to small arms fire during basic training.  He was also exposed to noise from tactical vehicles and tanks.  The Veteran reported wearing hearing protection most of the time.  After leaving the Army, the Veteran reported working in a factory environment.  He reported that hearing protection was not required.  The Veteran denied a history of recreational noise exposure.  The examiner further noted that the Veteran's otological history was unremarkable.

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

The December 2012 VA audiological evaluation revealed bilateral hearing loss per 38 C.F.R. § 3.385; however, the VA examiner provided a negative etiological opinion that the Veteran's bilateral hearing loss was not caused by or a result of an event in military service.

The Board finds that the December 2012 VA examination constitutes highly probative evidence against the Veteran's claim of service connection for a bilateral hearing loss disability, and outweighs the Veteran's lay opinion.  It is based on current examination results, the Veteran's reported history, and a review of the medical records, including audiometric examinations prior to, during and after service.  This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  The VA examiner opined that the Veteran's current bilateral hearing loss was not incurred in service.  This opinion reflects a clear and unequivocal conclusion regarding the relationship between the Veteran's bilateral hearing loss disability and his active duty.

Here, after reviewing all the relevant lay and medical evidence, the Board finds that the weight of the competent and credible evidence indicates the Veteran has not experienced continuous bilateral hearing loss symptoms since service, and thus the Board finds that service connection based on continuity of symptomatology is not warranted.

Although the Veteran himself has asserted that his bilateral hearing loss is related to service, he has not been shown to have the necessary training or expertise to competently provide a medical nexus opinion as to the etiology of his bilateral hearing loss, which is not the type of condition that is readily amenable to probative lay comment regarding its appropriate diagnosis and etiology.

In sum, the Board finds the Veteran is not shown to have bilateral hearing loss that was incurred in or aggravated by service.  Accordingly, the claim must be 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 the instant appeal.  Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra.

B.  Lumbar Spine Condition

A review of the evidence reflects that the Veteran has been diagnosed with a current lumbar spine disability, as demonstrated on VA examination in December 2012.  Consequently, the determinative issue is whether or not this disability is attributable to his military service.

The Veteran contends that the claimed lumbar spine disability is due to service.

STRs show that the Veteran complained of back pain in January 1979.  Upon examination, the examiner noted normal findings with no evidence of traumatic, neoplastic or significant arthritic change.  The examiner further noted no evidence of spondylolysis or spondylolisthesis.

On separation medical examination in August 1979, the Veteran's spine was normal.

In a private treatment record from Fields Chiropractic Clinics, dated March 19, 2007, the provider indicated that the Veteran was being evaluated for the effects of a motor vehicle accident.  The Veteran reported that he had problems with his right upper back, left lower back, right lower back, posterior aspect of neck and left upper back pain, muscular hypertonicity and paraspinal tenderness.  The Veteran reported that the motor vehicle accident occurred on March 16, 2007.  Upon physical examination, the provider reported lumbar spine, cervical spine and upper thoracic spine T1-T4 showed hypomobility, muscular hypertonicity and palpatory paraspinal tenderness.  The provider assessed cervical radiculitis, cervical sprain/strain, thoracic sprain, and lumbar sprain/strain.

The Veteran underwent a VA examination in December 2012.  The VA examiner provided a diagnosis of mild degenerative disc disease, degenerative changes L3-4, mild.  The examiner noted that the Veteran stated his lower back problem began in 1978; however there was no history of trauma.  The examiner noted that upon review of the STRs, there was indication that the Veteran complained of lower back pain and the examiner at that time noted normal findings.  The Veteran complained of moderate back pain, confined to his lower back with no radiation and no incapacitating episodes.  The examiner reported that the Veteran did have arthritis.  The examiner noted that x-ray of the lumbar spine dated September 6, 2012 revealed mild DDD.  The VA examiner opined that it was less likely as not that the Veteran's current back condition was caused by or related to active service.  The examiner noted that the Veteran's current x-ray findings reveal a very mild DDD.  He had only one back complaint in 1979 with examination findings noted as normal.  The examiner further provided that the 33 year time span of being symptom free, from active duty to present does negate the connection of active service to the present condition.

VA treatment records from the Dorn VA Medical Center dated May 2013 and June 2013, indicated that the Veteran was treated for chronic neck and back pain, and arthritis.

It is the Board's authority to determine the credibility of evidence.  Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).  In making credibility determinations, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence.  Id.

The Veteran did not report that he had chronic lumbar spine disability until his current claim.  His statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous histories, including during service, and his previous statements made for treatment purposes.  See Pond v. West, 12 Vet. App. 341 (1999).  With regard to the assertion of continuity of symptomatology, the Veteran did not report development of a chronic problem immediately, his back symptoms reported in service resolved, and there was a period of time when he was doing fairly well.  This weighs against the credibility of any assertion of continuous back symptoms since service.

Moreover, a March 2007 private treatment record reflects that the Veteran reported being involved in a motor vehicle accident in March 2007 that caused back pain.  This statement made during the course of seeking treatment, weighs against the credibility of his assertion of continuous back symptoms since service.

The absence of any complaints or findings related to this disability for so long after service is a factor weighing against the Veteran's contention of continuity of symptomatology.  38 C.F.R. § 3.303 (b).  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran had failed to account for lengthy time period between service and initial symptoms of disability).

Here, after reviewing all the relevant lay and medical evidence, the Board finds that the weight of the competent and credible evidence indicates the Veteran has not experienced continuous low back symptoms since service, and thus the Board finds that service connection based upon continuity of arthritis related symptomatology is not warranted.

The Veteran is shown to have a medically-diagnosed lumbar spine disorder (diagnosed as mild DDD).  He is also noted to have arthritis.  However, the VA examiner has provided a competent and uncontroverted medical opinion that the Veteran's claimed disability is not related to service.  The Board finds the December 2012 VA examination constitutes highly probative evidence against the Veteran's claim, and outweighs the Veteran's lay opinion.  It is based on current examination results, the Veteran's reported history, and a review of the medical records dated during and after service.  This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale.  See Bloom, supra; Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  The VA examiner sufficiently discussed the underlying medical rationale of the opinion, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Although the Veteran himself has asserted that his low back disability is related to service, he has not been shown to have the necessary training or expertise to competently provide a medical nexus opinion as to the etiology of his degenerative changes of the lumbar spine, including arthritis and/or degenerative disc disease, which is not the type of condition that is readily amenable to probative lay comment regarding its appropriate diagnosis and etiology.

In sum, the Board finds the Veteran is not shown to have a lumbar spine disability that was incurred in or aggravated by service.  Accordingly, the claim must be 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 the instant appeal.  Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra.

C.  Liver Disease (also claimed as hepatitis B)

A review of the evidence reflects that the Veteran has been diagnosed with a current liver disease, as demonstrated on VA examination in December 2012.  Consequently, the determinative issue is whether or not this disability is attributable to his military service.

The Veteran claims that his hepatitis B is due to service.

A review of the service treatment record reflects treatment for acute hepatitis in service.  In a treatment follow-up note dated July 12, 1978, the provider noted "hepatitis, prob A, resolving but still active."  See Service Treatment Record Follow-up note dated July 12, 1978.  On separation medical examination in August 1979, the Veteran's liver was normal.

The Veteran's medical treatment records for over 30 years after service were silent for complaints of liver disease and hepatitis.

A VA treatment record dated in November 2011 showed laboratory results which confirmed the presence of positive fluorescent treponemal antibody (FTA), rapid plasma regain (RPR), human immunodeficiency virus (HIV), cytomegalovirus antibody IgG (CMV-IgG), negative hepatitis A and negative hepatitis C, and positive hepatitis B antibodies.  Additional VA treatment records dated in 2012 indicated the Veteran presented with a 12 year history of HIV+ and reported hepatitis B.

The Veteran underwent a VA examination in December 2012.  The VA examiner confirmed a diagnosis of hepatitis A.  The examiner opined that the Veteran's current liver condition was caused by or related to active service.  The examiner further opined that based on the current examination and claims file review which showed the Veteran was diagnosed and treated for hepatitis during service.

The VA obtained an addendum opinion in March 2013.  The VA examiner was asked to render an opinion as to whether the Veteran has a chronic liver disability and if so is it related to his diagnosis of hepatitis A during service in 1977.  The VA examiner referenced the December 2012 VA examination and noted that the examiner noted a history of hepatitis A in service, but failed to recognize the presence of hepatitis B in recent labs.  At time of examination, the December 2012 examiner opined that liver enzyme elevations and current liver condition, was related to active service.  However, the Veteran's hepatitis in service was acute and resolved with no chronicity.  His hepatitis A immunoglobulin antibodies (IgM AB) were negative.  The Veteran is hepatitis B positive and has been followed by infectious disease/hepatology for hepatitis B and HIV.  The examiner noted that based on the evidence of record, the Veteran is hepatitis B positive.  The examiner noted the date of onset as sometime between discharge from service in 1979 and 2011, during the same interval the Veteran has confirmed HIV and late latent syphilis.  The examiner further noted that hepatitis A was an acute condition which resolved while in service and remained negative.  The examiner opined that the Veteran's current condition is hepatitis B, and is less likely than not related to the hepatitis A in service as it is a different serology of hepatitis.

As noted above, it is Board's authority to determine the credibility of evidence.  See Jandreau.  In making credibility determinations, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence.  Id.

Here, after reviewing all the relevant lay and medical evidence, the Board finds that the weight of this evidence indicates the Veteran's hepatitis B is not etiologically related to his military service.  The Veteran is shown to have hepatitis B.  However, the VA examiner has provided a competent and uncontroverted medical opinion that the Veteran's claimed disability is not related to service.  The Board finds the March 2013 VA addendum opinion constitutes highly probative evidence against the Veteran's claim, and outweighs the Veteran's lay opinion.  It is based on current examination results, the Veteran's reported history, and a review of the medical records dated during and after service.  This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale.  See Bloom, supra; Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  The VA examiner sufficiently discussed the underlying medical rationale of the opinion, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Although the Veteran himself has asserted that his hepatitis B is related to service, he has not been shown to have the necessary training or expertise to competently provide a medical nexus opinion as to the etiology of his hepatitis B, which is not the type of condition that is readily amenable to probative lay comment regarding its appropriate diagnosis and etiology.

In sum, the Board finds the Veteran is not shown to have a liver disease, to include hepatitis B that was incurred in or aggravated by service.  Accordingly, the claim must be 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 the instant appeal.  Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra.


ORDER

The claim for service connection for bilateral hearing loss is reopened and the claim is granted to this extent only; however, service connection for bilateral hearing loss is denied.

The claim for service connection for unspecified lumbar condition (claimed as back pain) is reopened and the claim is granted to this extent only; however, service connection for a lumbar spine disability is denied.

Entitlement to service connection for liver disease (also claimed as hepatitis B) is denied.



S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs