Citation Nr: 21065780 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-10 471 DATE: October 27, 2021 ORDER Entitlement to service connection for a low back disorder is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran's low back disorder was not shown as chronic in service, and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1963 to February 1965. He before the undersigned Veterans Law Judge during a March 2021 hearing. This matter is on appeal from a November 2018 rating decision, and was previously remanded by the Board of Veterans' Appeals (Board) in April 2021. The Board also remanded the issue of service connection for a right ankle disorder. Service connection was granted in a July 2021 rating decision, and that issue is no longer on appeal. 1. Entitlement to service connection for a low back disorder The Veteran contends that he has a low back disorder related to falling backwards when an A4 Skyhawk plane crashed on the deck of an aircraft carrier when an aircraft landed. March 2021 Hearing Transcript at 3. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, 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 (or within an applicable presumptive period) 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 current diagnoses of degenerative arthritis, degenerative disc disease, and spinal stenosis as evidenced by a June 2021 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the degenerative disabilities were not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and were not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with any low back disorder until March 2002 when X-rays showed hypertrophy and bone spurs, decades after his separation from service and decades outside of the applicable presumptive period. Degenerative disc disease was not shown until August 2011, decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. 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). Indeed, arthritis is a disability established by X-ray findings. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Service connection for a low back disorder 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 current diagnoses 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. The record contains conflicting medical opinions regarding whether the Veteran's low back disorder is at least as likely as not related to an in-service injury, event, or disease, including his reported injury. A March 2019 VA treatment record shows that the Veteran reported his injury. It was opined that that could certainly be linked to his current low back pain. No rationale was provided. There is also no indication that the treatment provider reviewed pertinent medical evidence in the claims file, including the service treatment records pertaining to A4 Skyhawk crash, which did not include any low back complaints. The June 2021 VA examiner opined that the Veteran's low back disorder is not at least as likely as not related to an in-service injury, event, or disease, including his reported injury on the aircraft carrier. The rationale was that there was no mention of the low back in relation to the injury on the aircraft carrier. The examiner opined that the findings noted on radiologic studies were consistent with the degenerative process associated with aging. They reported that there were no service records suggestive of an injury or routine care sought to support chronicity of care. The opinion shows that the Veteran's contentions were considered, as well as the 2019 treatment record relating the Veteran's back disorder to the reported injury. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the June 2021 VA examiner's opinion than to the March 2019 VA treatment provider's opinion. While the Veteran believes his low back disorder is related to an in-service injury, event, or disease, including an injury on an aircraft carrier, he does not have the training or credentials to provide a competent nexus opinion in this case. Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the competent medical evidence. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Board cannot make a fully-informed decision on the issue of service connection for bilateral hearing loss because no adequate opinion has been obtained. The Board remanded this issue to obtain an addendum medical opinion as to whether bilateral hearing loss is related to service. The Veteran was provided a VA examination in June 2021. The examiner opined that bilateral hearing loss is not related to service, with part of the rationale being that evidence was lacking to support acoustic trauma. However, acoustic trauma has already been established as the Veteran is currently service-connected for tinnitus. Therefore, a new opinion is necessary. The matters are REMANDED for the following action: Obtain an addendum medical opinion from the June 2021 VA hearing loss and tinnitus examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine the etiology of the diagnosed bilateral hearing loss. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the diagnosed bilateral hearing loss is related to the Veteran's military service. In providing an opinion, the examiner is reminded that in-service acoustic trauma is established due to the Veteran being service-connected for tinnitus. A complete rationale should be given for all opinions and conclusions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Barstow, 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.