Citation Nr: 21066765 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-52 080 DATE: November 2, 2021 ORDER Service connection for bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for cervical spine disability, claimed as neck pain, is remanded. Entitlement to service connection for lumbosacral spine disability, claimed as lower back pain, is remanded. Entitlement to service connection for right hip disability, claimed as right hip pain, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has had a bilateral hearing loss disability as defined by VA at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability 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 served on active duty in the United States Army from June 2002 to September 2002, from January 2003 to March 2004, from January 2010 to January 2011, and from July 2015 and June 2016 with service in the Southwest Asia theater of operations from April 2003 to January 2004 and February 2010 to December 2010. He also has periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an April 2019 Board hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In April 2019, the Board remanded the appeal for additional evidentiary development. During remand status, a July 2020 rating decision granted the claims of entitlement to service connection for PTSD and tinnitus. As the RO granted in full the benefit sought by the Veteran in this matter, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The RO sent to the Veteran a January 2021 Supplemental Statement of the Case that addressed the remaining issue on appeal. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a), (d). Certain chronic diseases, including organic diseases of the nervous system (bilateral hearing loss), 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). Entitlement to service connection for bilateral hearing loss disability. The Veteran contends he has bilateral hearing loss due to military noise exposure. He reports being exposed to bombs and gunfire during his military duty. See STR (June 2015). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. It is noted that the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Court has established that the threshold for normal is from 0 to 20 decibels. Id. As an initial matter, VA concedes noise exposure. However, the record does not reflect that the Veteran has a hearing loss disability for VA purposes as defined at 38 C.F.R. § 3.385. Therefore, the Board concludes that the preponderance of the evidence is against finding that the Veteran has had bilateral hearing loss at any time during or approximate to the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). STRs reflect no complaints, findings, or treatment for hearing loss. In service, the Veteran was in a hearing conservation program. Hearing conservation data from November 2008 to February 2013 reflects the Veteran had normal hearing (0-25 dB) in all of the applicable frequencies (500-4000 Hz). See STR (October 2013). A May 2016 note for the hearing conservation program reflects the examination of ears and hearing was without abnormal findings. See STR (July 2020). The Veteran initially claimed service connection for hearing loss in his 2012 VA disability claim. However, a January 2020 VA audiological examination showed findings that did not meet VA's criteria for a hearing loss disability. The Veteran's pure tone thresholds, in decibels, were as follows: Jan 2020 HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 10 15 LEFT 5 10 15 25 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 98 in the left ear. See C&P Exam (January 2020). Based on these results, the Veteran does not have a current hearing loss disability as defined by VA regulations. While the Veteran is competent to report hearing loss, the audiological findings needed to establish the presence of disability for VA purposes under 38 C.F.R. § 3.385 are not susceptible to lay observation. It requires specialized medical testing by a trained professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements as having hearing loss have no probative value. Absent competent, credible evidence of a disability during or approximate to the filing of the claim, there can be no valid claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for cervical spine disability 2. Entitlement to service connection for lumbosacral spine disability 3. Entitlement to service connection for right hip disability Issues 1-3: The Veteran contends that his back pain began in service due to overuse and physical training during military service. See C&P Exam (February 2020). He reported worsening low back pain with tightness in the back and pain after carrying a heavy object. Id. He reports that neck pain began on deployment (2003-2004) due to overuse from wearing heavy gear, worsened intermittently, and was characterized by tightness and dull nagging. Regarding right hip pain, the Veteran reported that he landed wrong after jumping over something in 2003 and began having hip pain which was intermittently aggravated when jumping and squatting. He received no treatment for any of the claimed conditions and reported no flare-ups or functional loss or impairment. A service treatment record (STR), dated in July 2002, related to the Veteran's enlistment in the National Guard, reflects that he had fractured two vertebrates in his lower back two years before. STRs document a L3-4 injury 'cleared' for sports. February 2004 Post-deployment Health Assessment (PDHA) documents the Veteran's report of back pain, muscle aches, and swollen, stiff, or painful joints. An October 2006 PDHA Reassessment for the same period reflects the Veteran felt current back pain was related to his deployment. STRs shows that the Veteran did not report musculoskeletal issues on 2007 and 2009 National Guard periodic health assessments or his December 2010 post-deployment questionnaire. On a January 2012 periodic health assessment, the Veteran reported that he experienced occasional back, neck, and joint pain "through most of body" since his 2003 deployment which he treated with rest; he did not seek medical treatment for these issues. VA treatment records (VATRs) reflect the Veteran lifts weights, runs 3 times per week, and participates in "very physical military competition[s]." See CAPRI (January 2020 and September 2020). VATRs document a history of backache but reflect no complaints of or treatment for right hip pain. A June 2016 x-ray of the cervical spine, responding to complaints of neck and shoulder pain, reflects mild-to-moderate C5-C6 and C6-C7 disc space narrowing, upper cervical kyphosis, and exaggeration of the lower cervical lordosis. See CAPRI (July 2020). January 2020 VA examination reports diagnosed cervical strain, lumbosacral strain, and right hip strain. See C&P Exam (February 2020). The Veteran denied flare-ups but reported intermittent pain. On examination of the cervical spine, the Veteran had abnormal range of motion on left and right lateral flexion to 40 degrees and left and right lateral rotation to 70 degrees with pain. Examination of the back reflected forward flexion to 85 degrees with pain. VA hip and thigh examination reflected flexion of the right hip to 120 degrees, abduction to 40 degrees, and external rotation to 50 degrees with pain on abduction and external rotation. Neither abnormal range of motion nor pain was found to contribute to or result in/cause functional loss. Related VA medical opinions (VAMOs) indicate that each diagnosis was given due to subjective symptoms on day of exam examination and cannot be connected with the complaints of the claimed conditions. The Board finds that the medical opinion that the Veteran's symptoms were merely subjective is incongruous with the objective medical findings. Therefore, the January 2020 VAMOs are inadequate. Likewise, the December 2020 VAMOs are inadequate because the opinions rely solely on the absence of documented diagnosis and/or treatment in service or within the first post service year. It does not explain in any meaningful way why the referenced disabilities are not at least as likely as not caused by or the result of the reported in-service overuse. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21Vet. App.303 (2007). A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from January 2021 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cervical spine, lumbosacral spine, and right hip disabilities. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any of the claimed conditions The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: (a.) Whether any disability of the neck, back, and/or right hip at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that overuse and jumping over an object in service. Consider and discuss the Veteran's pre- and post-service injuries and symptomatology shown in the record. NOTE (1): Pain, or symptoms, without an accompanying diagnosis of a present disease, can qualify as a disability for VA purposes if it reaches the level of a functional impairment of earning capacity. NOTE (2): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (3): A negative medical opinion may not ignore or dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. (b.) To the extent that arthritis is shown, address whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) As to the Veteran's lumbosacral spine, opine on whether a lumbosacral spine condition clearly and unmistakably (undebatable) preexisted the Veteran's service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.