Citation Nr: 21065870 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 12-33 465A DATE: October 27, 2021 ORDER Service connection for bilateral sensorineural hearing loss is granted. Service connection for a low back disability is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss onset during military service. 2. The competent medical evidence does not demonstrate that the Veteran's low back disability, degenerative joint/disc disease, is attributable to his active service or any incident of service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1973 to September 1976. He died in October 2020. The appellant is his surviving spouse. In May 2021, the Board recognized that there appeared to be some discrepancy regarding who actually represented the appellant, and she was asked to clarify her representation before the Board could proceed with appellate review. The appellant was informed that if the Board did not hear from her or her new representative within 30 days, it would be assumed that she wished to remain represented by the Florida Department of Veterans Affairs (FDVA). No response was received. Thus, the Board will proceed with FDVA as the appellant's representative in the instant appeal In June 2017, the Board denied the Veteran's claims for service connection for a low back disorder and bilateral hearing loss. However, the decision was vacated by the United States Court of Appeals for Veterans Claims (Court) and remanded in February 2018 for action consistent with a joint motion for remand (JMR). In October 2018, the Board remanded the claim to: (1) obtain VA treatment records from VA Medical Centers in and around Houston, Texas in the late 1970s and early 1980s; (2) conduct a VA back examination and obtain medical opinion as to its etiology; and (3) obtain any physical examinations and/or hearing examinations provided by the Veteran's employers. In compliance with the October 2018 Board remand directives, the Agency of Original Jurisdiction (AOJ) sent a request in July 2019 to obtain records from September 1976 to June 1998 from the VA Medical Center (VAMC) in Houston, Texas, and issued a determination letter in October 2019 that no such records were available and that further attempts to obtain the records would be futile. Records show that the AOJ had previously requested records from the VAMC Houston, Texas in 2010 and was informed that the Veteran was not in its database and that no records were available. In July 2019, the AOJ mailed a letter to the Veteran and requested that he provide the names and addresses of where he had received physical examinations with hearing tests since separating from service, along with a Form 21-4142a (General Release for Medical Provider Information) and a Form 21-4142 (Authorization to Disclose Information). In August 2019, the Veteran mailed a copy of the name card of a hearing specialist from Miracle Ear, along with a partially filled form 21-4142 without his signature. He did not identify whether an employer sponsored hearing test was conducted by the hearing specialist at Miracle Ear, and if so, by which employer and when the test was conducted. Additionally, the Veteran did not indicate whether he had received other physical or hearing examinations sponsored by his employers, nor did he provide the names and addresses of such employers (to include Calumet Lubricant) from whom the VA could retrieve medical records on his behalf. In addition, in November 2019, VA examined the Veteran, and a medical opinion was obtained. In a July 2020 Supplemental Statement of the Case (SSOC), the AOJ indicated that it did not receive the Veteran's authorization to obtain any private medical examination records to include examinations provided by his former employers. In September 2020, the Board found that although the information provided by the Veteran may be insufficient or incomplete and the form 21-4142 or form 21-4142a were not properly signed, the Veteran's August 2019 correspondence indicated his willingness to provide such information (to include providing a name card of a hearing specialist from Miracle Ear). Thus, in September 2020, the Board remanded the issues again to obtain the names and addresses of the Veteran's former employers or any private medical providers who provided him with physical and/or hearing examinations or medical treatment since he separated from service, and to obtain properly executed authorizations for release of such medical records from any identified former employer or medical provider, to include Miracle Ear. Unfortunately, the Veteran died in October 2020. His spouse, the appellant, filed a request for substitution of the appealed claims in November 2020, which was granted by the AOJ. In January 2021, the AOJ mailed a subsequent development letter along with the Form 21-4142a (General Release for Medical Provider Information) and a Form 21-4142 (Authorization to Disclose Information) to the Appellant to obtain relevant information of the Veteran's former employers and private medical providers as well as authorizations for release of relevant medical records from any identified former employer or medical provider, to include Miracle Ear. However, the records did not show that the VA had received such information or authorization for release from the Appellant, nor did the records show that a SSOC was issued after the AOJ's development letter dated January 2021. Thus, in August 2021, the Board remanded the appeal to have the AOJ issue an SSOC addressing received since the July 2020 SSOC. The AOJ issued an SSOC in September 2021. Thus, the requested development has been accomplished, and these matters have returned to the Board for further appellate consideration. The appellant is seeking service connection for bilateral hearing loss and low back disabilities, stepping into the shoes of the Veteran's appeal. The Board will adjudicate each issue separately after a brief discussion of the general laws and regulations governing service connection. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as other organic diseases of the nervous system, to include sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include sensorineural hearing loss. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Service Connection for hearing loss is granted. Impaired hearing will be considered to be a disability under the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Id. at 159. The Veteran contended that his hearing loss was caused by his exposure to acoustic trauma military service. The Veteran maintained that he had incurred in-service noise exposure while operating heavy artillery and 50 caliber machine guns. The Veteran asserted that, as a result, he had experienced a reduction in hearing during service, and that after service separation, his hearing had worsened. The Veteran maintained that that in approximately 2002, he began to have difficulty obtaining employment due to his hearing impairment. The Veteran contended that he was informed by VA that he had hearing loss in 1977 or 1978 (although records showing such were no longer available). The Veteran conceded that after separating from service, he incurred civilian occupational noise exposure while working in construction. The Veteran denied ever receiving hearing aids from VA. See Hearing Transcript (T.) at pages (pgs.) 2-9)). First, the Board finds that the Veteran had bilateral hearing loss for VA compensation purposes. See October 2020 VA Audio examination report. Thus, Shedden element number one, evidence of a current disability, has been met. Shedden, supra. Regarding Shedden element number two (2), evidence of in-service injury of disease, the Veteran's service treatment records (STRs) are silent for reports of or treatment for hearing trouble or ear problems. The Veteran underwent a separation examination in July 1976, and there was no evidence of hearing loss for VA compensation purposes. Notwithstanding the foregoing, the Board notes that the Veteran was exposed to loud noise during service as a consequence of his occupation as a Field Artillery Crewman. Therefore, the Board finds he has satisfied the second element of service connection. Id. Thus, the question that remains to be answered in this case is whether there is evidence establishing an etiological relationship between the Veteran's diagnosed bilateral hearing loss for VA compensation purposes and his in-service acoustic trauma. Here, the Veteran provided competent and credible statements that his current bilateral hearing loss began during service and that it had been recurrent since that time. The Veteran reported that he had first noticed hearing loss and tinnitus during service and that it had increased over the years. The Veteran is competent to report the onset and continuation of his hearing loss symptoms and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Moreover, the Veteran indicated that he had been diagnosed with hearing loss shortly after service, although treatment records are no longer available. In sum, as the competent, credible evidence shows that the Veteran's bilateral hearing loss had its onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). Service Connection for a low back disability is denied. The Veteran sought service connection for a low back disability, maintaining that that he had injured his back during a period of service as a result of picking up heavy objects, and this resulted in him being placed on a physical profile limiting his physical activity. The Veteran indicated that after separating from service he sought treatment for his back at VA Medical Center (VAMC) in Houston, Texas from 1977 until he moved to Louisiana. The Veteran further indicated that neither the military, nor the VAMC Houston gave him a diagnosis for his back, and they simply indicated that he manifested back pain. The Veteran stated that he began to seek regular treatment for back pain approximately 10 years earlier (approximately 2007). See T. at pgs. 9-16. The Veteran was diagnosed as having degenerative disc/joint disease. See November 2019 VA opinion. Thus, as there is evidence of a current disability, Shedden element number one (1) has been met. Turing to Shedden element number two (2), evidence of in-service disease or injury, the Veteran's STRs are silent for reports of or treatment for a back injury. The Veteran's spine was evaluated as normal during his separation examination. However, the Veteran was competent to state that he had injured his back lifting heavy objects during service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board finds that Shedden element number two (2), evidence of in-service treatment, has been met. Thus, the claim hinges on Shedden element number three (3), evidence of a nexus to military service. There is one VA opinion that addresses the direct service connection element, but it is against the claim. In November 2019, a VA clinician reviewed the claims file and provided an opinion as to the etiological relationship of his low back disorder to his period of military service. The examiner opined that the Veteran's back condition was less likely than not to have been caused by or a result of his military service. The VA examiner reasoned that the Veteran's claimed low back condition was a new and separate nonservice related condition, and was consistent with age related degenerative joint/disc disease. The examiner supported his conclusion noting that the Veteran's STRs did not note any abnormal back condition at service discharge, and that there was an absence of arthritis to a compensable degree within a year of service discharge. Overall, according to the VA examiner, the majority of evidence reviewed did not suggest a nexus link between the Veteran's claimed low back condition and military service, therefore it was less likely than not due to, caused by, incurred in, related to, or aggravated by active duty military service. The VA examiner supported his conclusion with medical articles discussing the etiology of spondylosis as an age-related condition. See November 2019 VA opinion. The Board finds the VA examiner's November 2019 opinion to be of high probative value in evaluating the claim for service connection for a back disorder, because he provided substantial reasoning and explanation, to include citing to medical treatise evidence as to why it was unrelated to military service. This opinion has not been undermined by any competent medical evidence and as such, the weight of the evidence is against service connection. Therefore, service connection for a back disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.