Citation Nr: 21002412 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-49 019 DATE: January 13, 2021 ORDER Entitlement to an increased disability rating for hearing loss disability is dismissed. Entitlement to service connection for right eye glaucoma is dismissed. Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. FINDINGS OF FACT 1. At the October 2020 Board hearing, the Veteran unambiguously expressed his intent to withdraw his claim for entitlement to an increased disability rating for a hearing loss disability and confirmed his understanding of the consequences of the withdrawal. 2. At the October 2020 Board, the Veteran unambiguously expressed his intent to withdraw his claim for entitlement to service connection for right eye glaucoma and confirmed his understanding of the consequences of the withdrawal. 3. There is an approximate balance of evidence that the Veteran’s degenerative disc disease of the lumbar spine is related to his service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an increased disability rating for a hearing loss disability by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to service connection for right eye glaucoma by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to service connection for a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1958 to November 1961. These matters come to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In January 2016, The AOJ issued a rating decision that denied the Veteran’s claims for service connection for right eye glaucoma and a back disability. The AOJ also declined to increase the Veteran’s service-connected hearing loss disability evaluated under Diagnostic Code (DC) 6100 as noncompensable. The Veteran timely disagreed in a November 2016 Notice of Disagreement (NOD) and perfected his appeal in an October 2018 VA Form 9. In September 2019, the Veteran’s case was received at the Board. In October 2020, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. 1. Entitlement to an increased disability rating for a hearing loss disability. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. If a Veteran withdraws at a Board hearing, his statement of withdraw must be (1) explicit, (2) unambiguous, and (3) done with the full understanding of the consequences of such action on the part of the [Veteran]. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In this case, the Veteran, during his October 2020 Board hearing, expressed his intent to withdraw his claim for entitlement to an increased disability rating for a hearing loss disability. After confirming his intent to withdraw, he was informed a withdraw of his claim meant the Board will not decide on his entitlement to an increased disability rating. And, if he changes his mind, he could file a new claim in the future. The Veteran confirmed his understanding of the consequences of his withdrawal. See Transcript dated October 2020 at 2. The Board finds the Veteran’s withdrawal to be explicit, unambiguous, and done with a full understanding of its consequences. Thus, the Veteran has withdrawn his appeal for entitlement to an increased disability rating for a hearing loss disability. And there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. Delisio, 25 Vet. App. at 57. 2. Entitlement to service connection for right eye glaucoma. During the same Board hearing, the Veteran expressed his intent to withdraw his claim for entitlement to service connection for right eye glaucoma. After confirming his intent to withdraw, he was informed the Board will not decide on his entitlement to service connection for that disability and he could file a new claim in the future. The Veteran confirmed his understanding of the consequences of his withdrawal. See Transcript dated October 2020 at 2. The Board finds the Veteran’s withdrawal to be explicit, unambiguous, and done with a full understanding of its consequences. Thus, the Veteran has withdrawn his appeal for entitlement to service connection for right eye glaucoma. And there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. Delisio, 25 Vet. App. at 57. 3. Entitlement to service connection for degenerative disc disease of the lumbar spine. The Veteran contends his back disability, to include degenerative disc disease of the lumbar spine, is related to his service. The question for the Board is whether there is sufficient evidence to find that the Veteran’s degenerative disc disease of the lumbar spine (back disability) is related to his service in the Navy as a helicopter crewmember. For the reasons discussed below, the Board concludes that the evidence supports a grant of service connection. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (2007). Another way a Veteran can establish service connection is by satisfying the test for disability compensation for chronic diseases set forth in 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331, 1334 (2013). To satisfy that test the Veteran must (1) have a chronic disease listed under 3.309(a) and (2) that disease must have been “shown in service.” Id. at 1335. As to (1), arthritis, to include degenerative disc disease of the lumbar spine, is a chronic disease listed under 38 C.F.R. § 3.309(a). As to (2), 38 C.F.R. § 3.303(b) equates “shown in service” with a reliable diagnosis of the chronic disease while in service. Walker, 708 F.3d at 1335. If the Veteran satisfies the test for disability compensation for chronic diseases in 38 C.F.R. § 3.303(b), the Veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability is sought. Id. Lay evidence, such as a claimant’s statement, can be competent and sufficient to establish a diagnosis of a condition when (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing the symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). A lay person’s statement is competent if he or she has personal knowledge which is gained through the senses, to include what is heard, felt, seen, smelled, and tasted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In order to prevail on a claim for benefits, the Veteran need only demonstrate there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This is because the Veteran is entitled to the “benefit of the doubt” when the evidence is approximately balanced. Id. at 53. Beginning with the Veteran’s service, his entrance exam does not note any manifestations of a back disability. His personnel records show he was assigned to a helicopter anti-submarine squadron and, from 1959 to 1961, he accrued at least 207 hours of flight time conducting air operations. And from July 1959 through February 1961, he was attached to a ship as part of an aircrew. See December 31, 1960, Administrative Remark by L.H.M.; November 3, 1961 Administrative Remark by B.F.D. The Veteran’s service medical records and separation exam do not note any complaints of any back conditions. The medical records of record associated with the Veteran’s back disability begin on December 20, 2000. They are private medical records that show a bilateral decompressive laminectomy was performed on the Veteran. The post-operative report notes the diagnoses of spinal stenosis, left lumbar radiculopathy. See December 20, 2000, Post-Operative Report by J.S.T., MD. Those private medical records end on December 21, 2000. The medical records associated with the Veteran’s back disability begin again in July 2014. The VA Medical Center records (VAMC) show the Veteran complained of back pains, an MRI was performed, and the Veteran was diagnosed with severe to advanced degenerative disc disease of the lumbar spine. Since 2014, the Veteran has been diagnosed with degenerative disc disease of the lumbar spine multiple times, to include in December 2014 and August 2016. See October 7, 2014 VAMC Record by S.S.A., MD.; December 5, 2014, Record by M.D.H., MD; August 23, 2016, Record. In November 2015, the VA received a statement from the Veteran wherein he described an in-service injury and explained why he did not report it to his service medical providers. The Veteran explained that his job as a sonarman was performed on a helicopter. And the helicopter he worked on made several landings on ships, which were stressful on his body. Also, he observed severe back pain following those landings but did not report it because he did not want to jeopardize his flight status. He added that he continued to observe back pains after service and they increasingly worsened over the years requiring him to seek medical attention. He added that he continues to observe back pain. See November 2015 Statement. Also, the VA received a statement from the Veteran’s wife, C.D., wherein she provides her observations of the Veteran while in service and after service. She indicates she knew the Veteran during service and states she married him shortly after his service. She observed the Veteran complain of back pains while in service. And after service, around the time they married, the Veteran described working on a helicopter and that many of the operations involved high impact landings that had affected him, physically. See November 2015 Statement from C.D. The VA received a statement from the Veteran’s son, J.M., as well. He states that, as far as he can remember, he has observed the Veteran complain of back problems. See November 2018 statement by J.M. The VA received a statement from D.T.S., DC. She states she has been treating the Veteran for spinal problems since July 2014 and has treated him 59 times since his first visit. She provided objective findings of stiffness, pain, and tenderness of the spine. She opines that the Veteran’s pain is caused “from the vertebral and pelvic malposition.” She did not opine on whether the malposition was caused by or related to the Veteran’s service. See October 2015 Statement from D.T.S., DC. In October 2020, a Board hearing was conducted for the Veteran’s entitlement claim. He reported that from July 1959 to November 1961 he was part of a helicopter aircrew that conducted air operations on both land and sea. He also reported the flight times ranged from two to four hours. See Transcript dated October 2020 at 4, 11. The Veteran reported observing physical pain associated with helicopter landings. He described the landings as controlled crashes and reported observing back pains after the landings. He also reported mental stress when the landings occurred at sea; he stated it was due to concern that the helicopter might not land on the ship and end up in the ocean. Id. at 5. The Veteran confirmed he had not reported complaints of back pains to service medical providers. He explained that, as part of an aircrew, he got additional flight pay tacked on to his paychecks. And when they were landing on ships at sea, he got sea pay. He reported it was a large amount of money to him and he might put himself at risk of losing that money if he complained of back pains to medical professionals. Id. The Veteran also confirmed that, even though he experienced back pains following service, he did not seek medical care through the VA until 2014. He explained that his father, who suffered medical complications following receipt of VA medical care, told him not to go to the VA for healthcare. So, he did not. Instead, he utilized the healthcare provided by his employer until he retired. After retirement, he did not have employer funded healthcare and resorted to going to the VA. Id. at 6. In November 2020, the VA received a medical opinion from A.J.L., DC. He states he has been treating the Veteran for chronic back pain, thoracalgia, and intermittent cervicalgia, since October 2019. He states the Veteran has reported chronic back pain since participating in air operations in the Navy. Dr. A.J.L. noted the Veteran suffers from degenerative disc disease with disc bulge/herniation. He also noted his finding is confirmed by radiographic imaging, MRI, and physical exam. Dr. A.J.L. also opined that the Veteran’s back pain is directly related to the period of time the Veteran was conducting air operations. He referred to a Navy study that found as many as 80 to 90 percent of helicopter crewmembers suffer lower back pain or injury and lists factors that increase risk of physical pain, to include design of seats, heavy gear, and long flight times. Then he related the Veteran’s duties as part of an aircrew to his back pains. See November 2020 Medical Opinion by A.J.L, DC; The Military Addresses Chronic Neck and Back Injury in Aviators, Militaryhub.com, https://www.militaryhub.com/article?id=337 (last visited December 30, 2020). Turning to the Veteran’s claim for disability compensation, the first issue is whether the Veteran has a current disability. The record reflects several diagnoses of degenerative disc disease of the lumbar spine, most recently found in the Dr. A.J.L.’s medical opinion. See November 2020 Medical Opinion by Dr. A.J.L. Thus, the record reflects a diagnosed back disability. The next issue is whether the Veteran has an in-service incurrence or aggravation of a disease or injury. The Veteran’s service medical records do not show a diagnosis or manifestations of a back disability. And the Veteran does not assert he was diagnosed with a back disability during service. The Veteran reports he observed pain in his back following helicopter landings during service. He is competent to report personal knowledge of symptoms, like pain, observed after helicopter landings. Layno, 6 Vet. App. at 469. Here, there are several reports of pain at his back that followed those landings. His reports are consistent throughout the appeal period. Considering the mental stress associated with the some of the landings at sea, the Veteran is likely to recall what he observed even after the passage of time. And the lay statement from his wife and son support the Veteran’s claims. The lay statement from his wife, in particular, adds to the credibility assigned to the Veteran’s statements. This is because she heard the Veteran complain of pains around the time the he left service. And he associated those pains to his service as a helicopter crewmember. For all the reasons above, the Board found the Veteran’s statements credible and assigned them great probative weight in favor of an in-service injury. The Veteran credibly explained why there is an absence of service medical records noting such complaints. He explained that he would put himself at risk of losing money from his paychecks if he complained of pains associated those landings. It is reasonable to believe that the Veteran would withhold complaints of pain in order to maintain his pay status. So, the Board assigned the lack of medical records noting complaints associated with his back disability little to no probative weight against an in-service injury. In this case, the Board finds the evidence is evenly balanced on the issue of an in-service injury. The Veteran’s statements describing the effects of the helicopter landings are probative evidence towards its occurrence. And even though the Veteran’s claims are not corroborated by his service medical record, he credibly explained why that is the case. Thus, doubt was resolved in the Veteran’s favor. Gilbert, 1 Vet. App. at 54. The next issue is whether there is a nexus between the Veteran’s back disability and his military service. The Veteran’s statements and observations are competent to support an in-service injury. Jandreau, 492 F.3d at 1377. But his statements are not sufficient to identify the disease entity and establish a diagnosis that is not subject to legitimate question. Walker, 708 F.3d at 1335-1336. The November 2015 medical opinion from Dr. D.T.S. did not weigh in favor of or against a nexus. This is because she did not indicate whether the Veteran’s back disability is related to his service. So, the Board did not consider her opinion. The other medical opinion of record, the November 2020 medical opinion from Dr. A.J.L., weighs in favor of a nexus. He is a medical professional who is qualified to opine on the likelihood of a nexus. In his opinion, he concluded there is a nexus between the Veteran’s back disability and service. Based on his history treating the Veteran for the disability at issue and reference to his service as part of a helicopter aircrew, the Board finds Dr. A.J.L. is cognizant of the relevant aspects of the Veteran’s past medical history. Nievez-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2006). Dr. A.J.L.’s rationale was sufficient to evaluate whether the data he relied on logically connects to his conclusion. Although he did not provide a lengthy explanation when rendering his conclusion, he connected the Veteran’s particular service to a study that was specific to the facts in this case. That is, helicopter crewmembers and the effects of hard landings. Thus, the Board finds Dr. A.J.L.’s explanation sufficient to evaluate whether data he relied on logically connects his conclusion. Nievez-Rodriguez, 22 Vet. App. at 301. So, his opinion was assigned significant weight in favor of a nexus. In this case, the evidence is, at least, approximately balanced on the issue of a nexus. There are two medical opinions of record: one of them did not opine on a nexus and the other opined there is a nexus. Under 38 U.S.C. § 5107, the Veteran is entitled to have the issue resolved in his favor. Accordingly, service connection is granted for degenerative disc disease of the lumbar spine under 38 C.F.R. § 3.303(a). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.