Citation Nr: 21003453 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-46 795 DATE: January 21, 2021 ORDER Entitlement to service connection for mild degenerative changes of the lumbar spine is granted. Entitlement to service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran has experienced low back pain related to arthritis since his separation from service. 2. The preponderance of the evidence of record is against finding that the Veteran has had right ear hearing loss at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for mild degenerative changes of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2004 to November 2005 and April 2007 to April 2010, active duty for training (ACDUTRA) from September 2002 to December 2002, with additional Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at an October 2019 Board hearing. A transcript is of record. The Board notes that the claims of service connection for low back disability, right and left ear hearing loss, were last before the Board in January 2020 when they were remanded for additional development. That development has been completed and these issues are ready for appellate review. Stegall v. West, 11 Vet. App. 268 (1998). In addition, the Board notes that the Veteran’s claim regarding entitlement to service connection for left ear hearing loss was granted during the pendency of this appeal. Thus, the claim is no longer before the Board. Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran 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’ - the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154 (a); 38 C.F.R. §§ 3.303 (a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for DJD of the lumbar spine. The Veteran asserts that his current diagnosis of arthritis (mild degenerative changes of the lumbar spine) is due to his injuries in-service. He related how he injured his back after sustaining a fall off a rappel tower and while performing sit ups during service. Certain chronic diseases will be presumed related to service if they were shown as chronic 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; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of mild degenerative changes of the lumbar spine as evidenced by a September 2020 private medical record. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records (STRs) show the Veteran complained of and was treated for symptoms of low back pain in December 2005 and October 2007, during active service. Additionally, STRs from the Veteran’s period of ACDUTRA service in September 2002, note injury to the Veteran’s lower back when twisting and STRs from the Veteran’s period of reserve service note the Veteran’s complaints of low back pain from physical training exercise in November 2010. Post-service, private treatment records show that he continued to complain and seek treatment for the same symptoms of injury and pain in the low back during the applicable presumptive period, and for years after. Based on thorough review of the record, the Board finds that the Veteran continued to experience the same symptoms from September 2002 to November 2010. The Veteran is competent to report that he experienced symptoms of back pain due to injuries sustained during that period. His statements and testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran’s arthritis. The Board notes that the evidence against the claim include the July 2020 VA medical opinion. The examiner opined that the Veteran did not suffer from a current diagnosis of a chronic back condition and therefore, it was less likely than not that a current low back condition was the result of or aggravated by events in service and/or in the line of duty. The examiner noted that STRs were significant for episodic low back pain but concluded that there was no objective evidence to opine that the Veteran suffered from a chronic back condition. The examiner also indicated that the record was likely incomplete and other medical records regarding the imaging studies of the back would be helpful in determining whether the Veteran has a separate chronic degenerative back condition. The Board affords the July 2020 VA medical opinion no probative weight as the record clearly includes various imaging studies and findings of the Veteran’s back throughout the years and the examiner clearly based the opinion entirely on the absence of evidence and failed to consider the Veteran’s lay assertions. For an opinion to be adequate, it must include consideration of the Veteran’s statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Nieves-Rodriguez, 22 Vet. App. at 301 (explaining that a medical report without “a reasoned medical explanation” lacks probative value). As the rationale was not based on an accurate factual premise and is internally inconsistent, the Board finds that this negative nexus opinion has no probative value. Based on the foregoing and after resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for low back degenerative changes (arthritis), a chronic disease, is warranted. 2. Entitlement to service connection for right ear hearing loss. The Veteran contends that he has right ear hearing loss associated with acoustic trauma while working with firearms, controlled explosions and engine noise during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). (Continued on the next page)   The October 2020 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of having a hard time hearing high pitches and people talking, he did not have a diagnosis of right ear hearing loss. Further, despite consistent treatment, private treatment records do not contain a diagnosis of right ear hearing loss. While the Veteran believes he has a current diagnosis of right ear hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence and the claim is denied. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, 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.