Citation Nr: 1815673 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-15 653A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD S. Moore, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 1974 to September 1974, and had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) since 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision from the RO in Philadelphia, Pennsylvania, which denied service connection for a low back disability and bilateral hearing loss. In July 2017, the Veteran testified at a Board videoconference hearing from the Lebanon VA Medical Center, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. The instant matter is a Veterans Benefit Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran has a current disability of lumbar syndrome with sprain/strain and degenerative joint disease of the lumbar spine. 2. The Veteran did not sustain a back injury during any period of active service, ACDUTRA, and/or INACDUTRA 3. The Veteran is currently diagnosed with bilateral sensorineural hearing loss. 4. During a period of ACDUTRA in June 1999, the Veteran was exposed to loud noise (acoustic trauma) during service. 5. The Veteran's current bilateral sensorineural hearing loss is etiologically related to the noise exposure (acoustic trauma) during a period of ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As the instant decision grants service connection for bilateral sensorineural hearing loss (SNHL), no further discussion of VA's duties to notify and to assist regarding this issue is necessary. As to the issue of service connection for a low back disability, the Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of the claim. The April 2011 letter was sent prior to the May 2013 initial rating decision and it explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, the evidence the Veteran was responsible for providing, and informed the Veteran of disability rating and effective date criteria. The Veteran has had ample time to respond and supplement the record. With regard to the duty to assist, VA has satisfied its duties to assist the Veteran. VA has made reasonable efforts to obtain relevant records of evidence. Specifically, VA has associated service treatment records, Army Reserve and National Guard treatment records, VA treatment records, private treatment records, Social Security Administration (SSA) medical records, the July 2017 Board hearing transcript, and the Veteran's lay statements with claims file. As discussed below, regarding the claim for service connection for a low back disability, the Board finds that the weight of the evidence shows the Veteran did not injure his low back during any period active service, to include periods of ACDUTRA or INACDUTRA; therefore, there is no in-service injury to which any current back disability could be related. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that, where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual basis is of no probative value). For these reasons, the Board finds that the evidence of record is sufficient to decide the issue of service connection for low back disability and no additional VA examination or opinion is warranted. See 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeals, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeals. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Authority 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a 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 of a nexus between the claimed in service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury, not diseases, incurred in or aggravated in the line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). VA's General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. See VAOPGCPREC 86-90. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. The Veteran is currently diagnosed with lumbar syndrome with sprain/strain and degenerative joint disease (DJD) of the lumbar spine (low back disability), a form of arthritis, and bilateral SNHL, an organic disease of the nervous system. Although arthritis and organic disease of the nervous system are "chronic diseases" under 38 C.F.R. § 3.309(a), the presumptive provisions of "chronic" in-service symptoms and "continuous" post service symptoms do not apply to periods of ACDUTRA or INACDUTRA. See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for any periods of ACDUTRA and/or INACDUTRA is not appropriate. As service connection for SNHL is being granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for a Back Disability The Veteran generally contends that the current low back disability was caused by injuries sustained in approximately 1996, approximately 2000, and October 2008. By filing the claim for service connection and ambiguous statements that the injuries occurred "while enlisted" in the U.S. Army Reserve (Army Reserve) and the Pennsylvania Army National Guard (National Guard), the Veteran at times seems to suggest the injuries occurred during ACDUTRA or INACDUTRA service; however, he has also testified that the back injuries occurred during civilian employment and not during a period of any service. Specifically, the Veteran contends that he first injured the low back in approximately 1996 during a motor vehicle accident. The Veteran contends that he reinjured the back in approximately 2000 while pulling cables at work and in approximately October 2008 when he fell off a ladder, and also due to lifting and carrying gear during combat training. See July 2017 Board hearing transcript, June 2011 Congressionals. The Board finds that the Veteran has a current diagnosis of lumbar syndrome with strain/sprain and DJD of the lumbar spine. See May 2007 and July 2007 private treatment records. After review of all the evidence, lay and medical, the Board finds that the weight of the evidence shows that the current low back disability was not incurred during a period of active service, to include ACDUTRA or INACDUTRA. As noted above, the Veteran contends that he sustained injuries to the back while enlisted in the Army Reserve and the National Guard; however, the Veteran stated that he was not on "active duty orders" during the 1996 motor vehicle accident or the 2000 work injury. See July 2017 Board hearing transcript. The Veteran testified that he was towing a bobcat in a blizzard when his personal truck was struck from behind during the 1996 motor vehicle accident. The Veteran also stated that he sustained a second back injury in approximately 2000 while pulling cables at his civilian job. The Veteran stated that he was not on active duty orders during the claimed motor vehicle accident and civilian work injury and was not performing the claimed activities in the line of his duties for the Army Reserve or the National Guard. See July 2017 Board hearing transcript. A review of Army Reserve and National Guard treatment records do not reflect any injury, complaints, diagnosis, or treatment of any back condition in or around 1996 or 2000. National Guard treatment records dated March 1997 and May 2002 reflect that the Veteran denied a current problem or history of recurrent back pain and the spine was evaluated as clinically normal. A July 2006 outpatient VA treatment record reflects that the Veteran reported being absent from work for a week due to a back injury sustained at (civilian) work, and a May 2007 private treatment record reflects that, while seeking treatment for low back pain, the Veteran reported a history of a motor vehicle accident in 1996 and a (civilian) work injury related to pulling cables at his civilian job in July 2006, but did not relate the motor vehicle accident or civilian work injury to duties performed during a period of ACDUTRA or INACDUTRA. After considering the medical and lay evidence, including the Veteran's lay testimony that the motor vehicle accident and civilian work injury were not sustained while on "active duty orders," as well as National Guard, private, and VA treatment records, which reflect that the Veteran provided histories, for the purposes of receiving treatment, of injuries to the back during a non-service related 1996 motor vehicle accident and a July 2006 civilian work injury, the Board finds that back injuries sustained during the motor vehicle accident and civilian work injury were not sustained during a period of ACDUTRA or INACDUTRA. Additionally, as to the claimed injury to the low back in approximately October 2008, the Board finds that the Veteran did not sustain an injury to the low back during a period of active service, ACDUTRA, or INACDUTRA. The Veteran contended that during this time, he sustained an injury to the low back when he fell from a ladder while working on his home and that he aggravated back pain due to lifting and carrying gear during combat training. See July 2017 Board hearing transcript. A review of National Guard service records reflects that the Veteran had a period of ACDUTRA from July 7 to 27, 2008, and that the Veteran was activated for deployment from September 19, 2008 to October 10, 2008, although he was ultimately deemed non-deployable due to a mental health condition. In addition, a National Guard treatment record reflects that the Veteran presented to the clinic on July 14, 2008 due to neck pain and provided a history for the purposes of treatment that carrying his equipment was bothering his neck but did not report any current low back pain. During the July 2008 clinic visit, the Veteran also provided a history of a preexisting neck and back injury sustained at his civilian job, and reported hurting his neck while after suffering a concussion on May 29, 2008. National Guard treatment records reflect that the Veteran reported to the clinic for lower back pain on October 2 to 3, 2008, but did not provide a history of the cause of the lower back pain. However, a National Guard service record dated October 5, 2008 reflects that the Veteran reported a hospitalization on May 29, 2008 due to head trauma after falling off a ladder but denied any current medical problems. While at the July 2017 Board hearing the Veteran has contended that a fall from the ladder occurred during a period of active duty status, the Veteran's recent lay statement is inconsistent with and outweighed by other lay and medical evidence of record, which shows that this event did not occur during a period of ACDUTRA or INACDUTRA. As noted above, lay statements provided on July 14, 2008 and October 5, 2008, closer in time to the claimed event and for the purposes of receiving treatment, reflect that the Veteran provided a history of falling from the ladder on May 29, 2008. National Guard service records reflects that the Veteran served on a period of ACDUTRA from April 5 to 9, 2008 and a period of INACDUTRA from May 1 to 4, 2008, but was not on ACDUTRA or INADUTRA during the May 29, 2008 fall from the ladder. Additionally, the Veteran testified that he fell from the ladder while working on his home, which is further evidence that the Veteran was not on ACDUTRA or INACDUTRA during the fall. As to the Veteran's contention that combat training in October 2008 exacerbated or aggravated his back pain, the record does not reflect that the low back disability was aggravated beyond the normal progression of the disease or impairment due to traumatic injury or event incurred during the approximately three week period that the Veteran was activated to train for deployment. The Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). In the instant matter, the Veteran sought treatment for back pain on October 2 and 3, 2008 without providing a history of the cause of the back pain; however, the Veteran denied any current medical problems two days later on a medical data questionnaire dated October 5, 2008. The record reflects that the Veteran was assigned a medical profile and was recommended for release from active duty on October 8, 2008 for adjustment disorder with mixed anxiety and depressed mood, with no mention of disease or injury related to a low back condition. See October 2008 National Guard service record. The VA and private treatment records reflects that the Veteran has reported additional flare ups of back pain due to engaging in non-service related activities since the October 2008 period of active service. For example, an April 2009 VA treatment record reflects that the Veteran provided a history of back pain after lifting blocks onto his truck a week prior. August and October 2009 VA treatment records reflect reports of flare ups of back pain after cutting the grass and pushing a wheel barrel. A February 2010 private treatment records reflects that the Veteran reported an onset of back pain after slipping and falling on the ice while getting out of a tractor at his home, and a May 2010 private treatment record reflects that the Veteran reported reinjuring the back two weeks prior while driving a truck for work. No treating or examining physician of record has opined that a low back disability was aggravated beyond its natural progression by an in-service injury or event. Considered as a whole, lay statements provided for the purposes of treatment in National Guard, VA, and private treatment records indicate that treatment for low back pain in October 2008, was merely one episode of back pain, among many subsequent flare ups of back pain symptoms related to the Veteran exerting himself during activities, and the October 2008 period of active service did not aggravate the low back disability beyond its natural progression. The Board also finds that the record does not indicate that the Veteran's current low back disability is related to any other period of active service. The Veteran's service treatment records while on active duty from April 1974 to September 1974 or on any period of ACDUTRA or INACDUTRA do not indicate any other injury or event that involved the low back, nor has the Veteran asserted any other injury occurred other than the injuries in in 1996, 2006, and 2008. As noted above, subsequent reports of episodes of back pain were attributed to non-service related activities, including work around the home and an additional civilian work related injury. The record as a whole, including lay and medical evidence, indicates that the 1996 motor vehicle accident, July 2006 civilian work injury, and May 2008 fall from the ladder were not incurred during active duty service, to include ACDUTRA or INACTDUTRA, and treatment for back pain during the October 2008 period of active service was not the result of a traumatic injury to the back, but is one episode among many pervious and subsequent non-service related flare ups of back pain associated with exertion during activity. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the low back disability was not incurred in or otherwise caused by active service, as the evidence does not show an in-service injury or occurrence of the disability. 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. Service Connection for Bilateral Hearing Loss The Veteran generally contends that the current bilateral SNHL was caused by and injury, that is, acoustic trauma, sustained during a period of active duty service. Specifically, the Veteran contends that he blew out his eardrums due to shooting weapons during live fire exercises while on active duty in the Army in approximately 1996, which caused difficulty hearing and ringing in the ears. See July 2017 Board hearing transcript. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board finds that that Veteran has a current disability of bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. An October 2012 outpatient VA audiometric examination report shows pure tone thresholds of 40 dB or greater at 4000 Hz in the right and left ear. There is no indication that the audiometric examination results are unreliable or otherwise inadequate. The October 2012 outpatient VA audiometric examination report also reflects that the Veteran was diagnosed with SNHL in both ears. The Board finds that the Veteran was exposed to loud noise (acoustic trauma) during a period of ACDUTRA in June 1999. A June 1999 Army Reserve treatment record reflects that the Veteran experienced a sudden onset of tinnitus, that is, ringing in the ears, while wearing protective ear plugs after firing a weapon during firing qualifications at the range, and that the acoustic injury was incurred in the line of duty. After a review of all the evidence of record, both lay and medical, the Board finds that the evidence is in relative equipoise on the question of whether the current bilateral SNHL began in service, that is, whether the bilateral SNHL was directly "incurred in" service. Prior to the June 1999 acoustic trauma, a March 1997Army Reserve treatment record reflects audiometric findings that were within normal limits with pure tone thresholds of 10 dB at 500 Hz, 0 dB at 1000 Hz, 0 dB at 2000 Hz, 5 dB at 3000 Hz, and 15 dB at 4000 Hz in the right ear, and 10 dB at 500 Hz, 0 dB at 1000 Hz, 0 dB at 2000 Hz, 5 dB at 3000 Hz, and 20 dB at 4000 Hz in the left ear. Following the June 1999 acoustic trauma, a May 2002 National Guard treatment record reflects that the Veteran had an abnormal audiogram, as pure tone thresholds in the right ear were 35 dB at 500 Hz, 40 dB at 1000 Hz, 60 dB at 2000 Hz, 5 dB at 3000 Hz, 20 dB at 4000 Hz. Pure tone thresholds in the left ear were 20 dB at 500 Hz, 20 dB. at 1000 Hz, 15 dB at 2000 Hz, 30 dB at 3000 Hz, and 30 dB at 4000 Hz. Audiometric values recorded during the May 2002 post-injury audiometric examination reflect a threshold shift of up to 60 dB in the right ear and up to 25 dB in the left ear compared to audiometric values recorded during the pre-injury March 1997 audiometric examination, indicative continued symptoms of decreased hearing since the June 1999 acoustic trauma during weapons qualifications. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding SNHL is a permanent disability that was incapable of actual improvement of the nerve damage because chronic SNHL either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic SNHL that was caused by acoustic trauma is not medically possible); see also VA Training Letter 10-02. VA treatment records dated April 2008 and May 2008 reflect that the Veteran reported significant hazardous noise exposure in the military due to firing weapons, and continued problems with abnormal hearing and chronic ringing in the ears. A May 2008 National Guard service record reflects that the Veteran was assigned a permanent hearing loss profile. Additionally, the record reflects that the Veteran is currently service-connected for tinnitus, which is further evidence of acoustic trauma and injury to the nervous system during service. See September 2017 rating decision. The acoustic trauma, that is, injury, during a period ADUCTRA coupled with the evidence pertinent to service discussed above tends to show that the symptoms of a hearing loss disability later diagnosed as SNHL had its onset during service, that is, shows that the SNHL disability was "incurred in" the relevant period of ACDUTRA. See 38 C.F.R. § 3.303(d). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for SNHL have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a back disability is denied. Service connection for bilateral hearing loss is granted ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs