Citation Nr: 20030127 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 17-19 517 DATE: April 29, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for arthritis, thoracolumbar spine with history of back injury (hereinafter “back condition”) is denied. REMANDED Entitlement to service connection for arthritis, right foot is remanded. Entitlement to service connection for arthritis, left foot is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, her current bilateral hearing loss is etiologically related to her active duty service. 2. The Veteran’s back condition did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria to establish service connection for back condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to August 1981 and January 1991 to February 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability or injury incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. This generally requires a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disorders shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. 38 U.S.C. §§ 1101, 1112, 1113 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Sensorineural hearing loss, as an organic disease of the nervous system, is a chronic disease under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology after discharge is an alternative means of establishing service connection with respect to the listed chronic diseases. 38 C.F.R. § 3.303(b). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Bilateral hearing loss The Veteran asserts that her current bilateral hearing loss is related to military noise exposure as a result of fixing jet engines while they were running. See December 31, 2014 Statement in Support of Claim. Hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 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. The Veteran underwent a VA audiological examination in April 2015. She was diagnosed as having a bilateral hearing loss disability within the meaning of 38 C.F.R. § 3.385. The first element of Shedden is met. The Veteran’s DD-214 shows her military occupational specialty (MOS) as reciprocating propulsion mechanic, which has a high probability of noise exposure; therefore, military noise exposure is conceded. 38 U.S.C. § 1154(a). The second element of Shedden is therefore met. The April 2015 VA examiner declined to link the Veteran’s bilateral hearing loss to service. The April 2015 VA examiner generally noted that the Veteran’s separation examination showed normal hearing, and (without addressing the Veteran’s specific circumstances) cited the Institute of Medicine (IOM) report titled “Noise and Military Service: Implications for Hearing Loss and Tinnitus” (2006) for the proposition that delayed onset hearing loss is an unlikely phenomenon. Recently, in McCray v. Wilkie, 31 Vet. App. 243 (2019), the Court directed attention to the fact that the IOM report on which the examiner relied contains qualifying or contradictory aspects, which limit its probative value. As the April 2015 VA examiner failed to note these contradictions in the IOM study and/or explain why they were inapplicable to the Veteran’s circumstances, the Board affords no evidentiary weight to the opinion issued by the April 2015 VA examiner. The Veteran has credibly reported decreased hearing acuity since service discharge, which has resulted in the use of hearing aids. See December 31, 2014 Statement in Support of Claim. Resolving all reasonable doubt in her favor, the Board finds that the Veteran’s credible and competent lay statements regarding continuity of hearing loss symptomatology are sufficient to support an award of service connection under the provisions of 38 C.F.R. § 3.303(b). Accordingly, the Veteran’s appeal seeking entitlement to service connection for bilateral hearing loss is granted. 2. Back Condition The Veteran asserts that her back condition is related to a back injury incurred as a result of slipping on wet cement while washing a C-130 during service. See December 31, 2014 Statement in Support of Claim. While the Veteran has degenerative disc disease (DDD) at the L5-S1 with associated foraminal stenosis, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with DDD until October 1992, nearly two years after her most recent separation from active duty service and outside of the applicable presumptive period. The Veteran complained that she slipped while washing an aircraft and was diagnosed with a muscle strain in September 1992. See September 18, 1992 Medical Treatment Record-Non-Government Facility. However, these records indicate she was working as a civilian airplane mechanic. In addition, this complaint of back pain was still more than a year and a half after her most recent separation from active duty service and more than half a year outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of back pain since service and consistently since service, she is not competent to determine that these symptoms were manifestations of DDD. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran’s service treatment records do not show any complaints, treatment, or diagnoses of a back condition. Although the Veteran slipped and injured her back while washing a C-130, the evidence of record indicates that she was not on active duty service during the incident. There were not sufficient manifestations to identify the disease entity as chronic in service or within the first post-service year. Therefore, service connection for a back condition is not warranted based on the presumption in favor of chronic diseases or continuity of symptomatology. Service connection for a back condition may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s back condition and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. As discussed above, the Veteran’s service treatment records do not show any complaints, treatment, or diagnoses of a back condition. She was not on active duty service when she slipped and injured her back while washing a C-130. The Veteran was not afforded a VA examination in connection with the claim of service connection for a back condition. On the facts of this case, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no reasonable possibility that a VA examination or opinion could aid in substantiating this claim of service connection, because there is nothing in service to which the current disability could be related by competent opinion. See 38 U.S.C. § 5103A(a)(2) (VA “is not required to provide assistance to a claimant...if no reasonable possibility exists that such assistance would aid in substantiating the claim.”); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is “no reasonable possibility that further assistance would substantiate the claim”); see also Duenas v. Principi, 18 Vet. App. 512 (2004). While the Veteran believes her back condition is related to an in-service injury, event, or disease, including a slip and fall injury, she is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v, 492 F.3d at 1377 n.4. There is no objective medical evidence establishing a nexus between the Veteran’s back condition and her active service. Service connection for a back condition on a direct basis is not warranted. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that her back condition is causally related to her service, was chronic in service, or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. REASONS FOR REMAND 1. Right foot, arthritis 2. Left foot, arthritis The Veteran asserts that her arthritis of the feet is related to standing on maintenance stands in order to work on top of engines during service. See December 31, 2014 Statement in Support of Claim. VA must afford a veteran an examination and/or obtain an opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon, 20 Vet. App. at 81-82. Medical records dated in September 2014 show the Veteran has diagnoses of bilateral degenerative joint disease (DJD) with pes planus, posterior tibial tendinitis bilateral and asymptomatic bunions, right worse and left. As discussed previously, the Veteran’s MOS was reciprocating propulsion mechanic. Therefore, in view of the above, the evidence in this case is sufficient to indicate that the Veteran’s arthritis of the feet may be related to an event, injury, or disease in service. Therefore, the low threshold of McLendon has been met, and remand is required to obtain a competent medical examination and opinion. Id. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot disability, to include any degenerative joint disease with pes planus, tendinitis and bunions. The electronic claims file must be reviewed for the examination, and the examination report should indicate that it has been reviewed. A complete history should be elicited from the Veteran. The examiner must consider the Veteran’s lay statements regarding her history of symptoms and treatment. The Veteran is competent to report the symptoms that she experienced and her history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). For any foot disability present during the claim period, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the disability developed in service or is otherwise causally related to an event, injury, or disease in service, to include standing on maintenance stands in order to work on engines during active service. If arthritis of the foot is identified, then the examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the arthritis was present to a disabling degree within one year of the Veteran’s separation from service in August 1981 and February 1991. Both past and current medical evidence, as well as the Veteran’s past and current statements should be considered. The examiner must provide a complete rationale (an explanation supported by facts of record and medical knowledge) for opinions expressed. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Norwood, 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.