Citation Nr: 20071908 Decision Date: 11/06/20 Archive Date: 11/06/20 DOCKET NO. 18-35 569 DATE: November 6, 2020 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to a rating in excess of 10 percent for a left elbow disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s current back disability was incurred in service. 2. The Veteran’s hypertension did not manifest during service or within a year of service discharge and is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for back disability has been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria to establish service connection for hypertension are not met. 38 U.S.C. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1965 through November 1967. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a). Certain chronic diseases, such as arthritis and hypertension, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. 1. Entitlement to service connection for a back disability The Veteran seeks service connection for a back disability. There is no question the Veteran has a current diagnosis of a back disability, which includes a diagnosis of degenerative arthritis of the spine. See December 2019 VA examination. Thus, the first element of service connection is met. The remaining questions before the Board are whether there was an in-service incurrence of a disease or injury; and whether his current disability is related to an in-service incurrence(nexus), if any. The Veteran’s entrance examination showed no diagnoses related to back disability. In August 1966, service treatment notes document treatment after an automobile accident. By May 1967, the Veteran complained of tenderness in his lower cervical and upper thoracic spine from a May 1st auto accident. He was placed on a physical profile for back strain. As the record contains evidence of in-service injury and a presentation of symptoms related to a back disability, the second element is satisfied. The remaining question before the Board is whether the Veteran’s current back disability is related to his in-service injury and presentation of symptoms (nexus). At a December 1967 VA examination, the Veteran endorsed that he had trouble with his back “sometimes.” He was diagnosed with a history of low back pain. In June 1999, the Veteran revealed that he had not worked since 1986 due to back and arm problems. At a December 2019 VA examination, an examiner opined that the Veteran’s back disability is less likely than not related to his in-service injury. It was explained that the Veteran’s “real” back issues did not start until around 1982 when he had ruptured disc surgery. He had additional back surgeries in 2016 and 2017 due to advance degenerative arthritis. These back issues were too remote from the 1966 episode of low back pain to be the culprit. Upon careful review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s currently diagnosed back disability is related to his military service. As addressed above, his back disability is considered a chronic disability. Thus, presumptive service connection may be established by a showing of a continuity of symptoms since service. Here, the Veteran established a continuity of symptoms since service through his consistent and competent reporting that his symptoms related to a back disability began in-service and has continued ever since. The December 1967 VA examination completed shortly after his discharge also confirms a history of back pain, which further supports the Veteran’s statements for a continuity of symptomology. The Board has no reason to doubt the Veteran’s credibility. There also exists competent medical evidence against finding service connection for the Veteran’s back disability. Resultantly, the Board finds that the positive and negative evidence in this matter is in relative equipoise. Based on the aforementioned, the Board will resolve all reasonable doubt in the Veteran’s favor and grant service connection for a back disability. 2. Entitlement to service connection for hypertension The Veteran contends that his hypertension is related to service. The record contains a diagnosis of hypertension. See December 2019 VA examination. Thus, the first element for establishing service connection has been satisfied. Service treatment records are silent for complaints, diagnoses, or treatment for hypertension. Likewise, the Veteran’s entrance and exit examinations do not list a diagnosis of hypertension. In December 2019, the Veteran was afforded a VA examination for hypertension. The Veteran reported that he was diagnosed with hypertension in the 1980s. The examiner ultimately opined that the Veteran’s hypertension less likely than not had its onset during service or otherwise is causally related to any event or circumstance of the Veteran’s service. The rationale included that his service records do not reveal any issues with his blood pressure. Further, he stated that he was diagnosed with hypertension in the 1980s. Considering the aforementioned, service connection is not warranted for hypertension. First, there is no lay or medical evidence of the Veteran’s hypertension presenting while in-service or manifesting to a compensable degree within one year following separation from service. Rather, the Veteran’s hypertension was first diagnosed decades after his discharge from service. Thus, presumptive service connection for a chronic disability is not warranted. Service connection under the theory of direct service is likewise not warranted. The December 2019 VA examiner’s opinion is against finding that that the Veteran’s hypertension is related to service. The examiner provided adequate rationale for the opinion expressed, which noted that the Veteran had normal blood pressure readings in-service and was not diagnosed with hypertension until decades later. The Board finds the examiner’s opinion highly probative, as it is based on a thorough review of record and considers the Veteran’s lay statements, and is the only medical opinion addressing direct service connection. Although the Veteran sincerely believes that his hypertension is related to his service, he is a layperson and lacks the training/expertise to opine competently on medical questions such as those presented in the instant case. Lay statements are not competent evidence regarding diagnosis or etiology in such case. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007), Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. Based on the aforementioned, the Board finds the evidence is not sufficient to show that the Veteran’s hypertension ia related to service. In reaching this 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. See 38 U.S.C.§ 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a left elbow disability is remanded. The Veteran contends that he is entitled to an increased rating for his left elbow disability, In the July 2019 Board remand, the Board documented an internal inconsistency in the Veteran’s July 2017 VA examination. Namely, the July 2017 VA examiner found that the Veteran had ankylosis of the left elbow joint but also assessed that the Veteran exhibited complete forearm supination and pronation, and was able to flex up to 145 degrees and extend up to 30 degrees. Although not listed in the remand directives, language elsewhere in the remand order requested an addendum opinion to clarify the July 2017 VA examiner’s notation regarding the assessment of ankylosis. In December 2019, a VA examination was obtained. However, the examiner offered no response regarding whether or not the Veteran had left elbow ankylosis. There was also no discussion of the internal inconsistency regarding left elbow ankylosis noted within the July 2017 VA examination. As the issue of left elbow ankylosis is relevant to the Veteran’s appeal for a higher evaluation, further development is necessary. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is related to service, to include his exposure to hazardous noise. The Veteran was afforded VA examinations in July 2017 and December 2019 for bilaterally hearing loss. The examiners ultimately concluded that his bilateral hearing loss was less likely than not (less than 50% probability) caused by his military service. In so finding, the VA examiners primarily relied on the fact that the Veteran’s induction and final discharge audiograms were normal. There was no evidence of a significant permanent in-service threshold shift at any frequency and the service treatment records were silent for complaints of hearing loss. The December 2019 VA examiner cited to a 2005 Institute of Medicine (IOM) National Academy of Sciences study entitled “Noise and Military Service Implications for Hearing Loss and Tinnitus,” in which the IOM concluded that, based on current knowledge of cochlear physiology, there is no sufficient scientific basis for the existence of delayed-onset hearing loss. An addendum opinion is needed to address the apparently contradictory findings regarding delayed-onset hearing loss in the IOM report. See McCray v. Wilkie, No. 17-1875 (U.S. Vet. App. June 18, 2019) (addressing the IOM report’s findings regarding delayed onset hearing loss). Specifically, the VA medical opinion noted that the IOM report concluded, in part, that there was no sufficient scientific basis for the existence of delayed-onset hearing loss. However, the IOM report also indicated that “[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure” and that “definitive studies to address this issue have not been performed.” As such, an addendum opinion is needed to address the apparently contradictory findings within the IOM report and reevaluate the etiology of the Veteran’s current hearing loss. Additionally, neither VA examination discussed any alternative etiologies of the Veteran’s hearing loss. A review of the record suggests that the Veteran may have had some post-service noise exposure, but it is unclear whether such exposures were significant enough to cause hearing loss or merely compounded his acoustic injury sustained in-service. As such, further development is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left elbow disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Additionally, the examiner is asked to specifically address the July 2017 VA examiner’s statements concerning the presence of left elbow ankylosis and the possible inconsistency as shown in the left elbow range of motion testing. See VBMS document labeled C&P Exam, receipt date 07/18/2017. 2. Obtain an addendum regarding the etiology of the Veteran’s bilateral hearing loss. No additional examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hearing loss is related to the Veteran’s conceded noise exposure in-service. In answering this question, please address: a. The possibility of delayed-onset hearing loss. In discussing this element, please do not rely on the findings of the 2005 IOM study, as that report contains contradictory information and qualifiers that render it non-probative. Should the examiner rely on this opinion, it will be considered inadequate and returned for clarification. b. Whether there are any alternate etiologies of the Veteran’s bilateral hearing loss. In so opining, the examiner is asked to consider possible post-service noise exposure. See VBMS document labeled CAPRI, receipt date 7/1/2020, page 65. If it is determined that the Veteran’s post-service noise exposure was significant enough to result in bilateral hearing loss, the examiner is asked to further consider whether it is at likely as not that both the Veteran’s in-service hazardous noise exposure and post-service noise exposure contributed to his resulting bilateral hearing loss. If unable to provide a medical opinion, please provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.