Citation Nr: 21066880 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-07 614 DATE: November 2, 2021 ORDER Entitlement to a compensable disability rating for the Veteran's service-connected bilateral hearing loss is denied. Entitlement to service connection for a lower back condition is granted. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is most closely approximated by a noncompensable, 0 percent disability rating. 2. The Veteran's lower back disability is at least as likely as not etiologically related to his active-duty service CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a compensable disability rating for the Veteran's service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for establishing entitlement to service connection for a lower back condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1964 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in February 2019, it was remanded for additional development. Specifically, the RO was instructed to obtain examinations which addressed the etiology of the Veteran's lower back disability and the current severity of his bilateral hearing loss. Relevant examinations were obtained. As such, the Board finds that the RO substantially complied with the directives of the February 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased RatingBilateral Hearing Loss Legal Criteria Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The severity of hearing loss is determined by comparing audiometric test results with the specific criteria. 38 C.F.R. § 4.85, Diagnostic Codes 6100 through 6110. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from service-connected defective hearing. The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids. Analysis The Veteran is seeking a rating in excess of that already assigned to his service-connected bilateral hearing loss. VA and private treatment notes indicate that the Veteran has received treatment for his bilateral hearing loss. The Veteran had undergone a private February 2014 and audiological evaluation. However, it was unclear whether the examination used Maryland CNC word recognition testing as required by 38 C.F.R. § 4.85. Additionally, the examiner did not report the average hertz hearing impairment experienced by the Veteran. Further, the Veteran submitted an August 2019 medical opinion from the Better Hearing Clinic Inc. In this record they reported that the Veteran had a 90 percent and an 84 percent speech discrimination in the left and right ears respectively. But again, it is unclear if this facility used Maryland CNC test scores and they did not provide any hertz measurements to reflect the Veteran's audiological impairment. In April 2015 the Veteran was provided with a VA audiological evaluation, which revealed puretone thresholds, in decibels, as follows: (Continued on the next page) HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 20 35 40 55 60 47.5 LEFT 20 30 35 45 55 41.25 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 96 percent in the left ear. Applying the April 2015 audiometric results to the Rating Schedule reveals a numeric designation of Level II for the Veteran's right ear and Level I for the Veteran's left ear. See C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII results in a noncompensable 0 percent disability rating from this examination. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. In February 2019, the Board remanded the Veteran's claim to determine the current severity of the Veteran's bilateral hearing loss. In January 2020, in response to the Board's Remand, the Veteran underwent his most recent VA audiological evaluation, which revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 20 15 30 55 55 38.75 LEFT 20 15 25 55 55 37.5 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. Applying the January 2020 audiometric results to the Rating Schedule reveals a numeric designation of Level I for the Veteran's right ear and Level I for the Veteran's left ear. See C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII results in a noncompensable 0 percent disability rating from this examination. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, based on the audiometric findings of record, a compensable disability rating for the Veteran's bilateral hearing loss is not warranted and the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran seeks service connection for a lower back disability which he contends originated in service. The medical evidence confirms that the Veteran has a current diagnosis of degrative arthritis of the spine. See January 2020 VA Back Conditions examination. The central issue that must be resolved is whether the Veteran's current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's service treatment records (STRs) contain no complaints of, or treatment for, lower back pain. However, the Veteran has provided lay statements throughout the record that he injured his back during basic training when his hand slipped off of a rope and he fell onto the ground. The Veteran reported that he was required to continue throughout the training course, despite experiencing pain because he did not want to perturb his instructors. Further the Veteran reported that he was treated at a military facility on at least two occasions while he was stationed at McCoy air force base. The Board notes that the Veteran's private treatment records document longstanding complaints of lower back pain. The Board specifically notes a March 1993 documenting low back pain complaints that had its onset in 1965 from an "old war injury;" a June 2008 treatment record which indicated that Veteran experienced lower back pain for 40 years; and an October 2008 chiropractic clinic statement wherein the Veteran's chiropractor indicated that he had been treating the Veteran since 1993 and his x-rays documented degenerative changes that would indicate he had experienced an old injury. In response to the Board's February 2019 Remand, the Veteran was provided with a January 2020 VA Back Condition examination. The examiner diagnosed the Veteran with degenerative arthritis of the spine, indicated the onset date was in 1964, and that the Veteran experiences back pain which is related to his current disability. However, the examiner opined that the Veteran's back condition was less likely than not (less than a 50 percent probability) etiologically related to his active-duty service. The rationale provided was that there was no STR record to confirm that the claimant was seen for a back condition while in active duty service. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The January 2020 VA examiner's opinion was based on a lack of evidence of treatment in service. However, the Board notes, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. Further, the Board notes that the examiner did not discuss the Veteran's competent lay statements addressing his lower back pain from service to present day; additionally, the examiner only did not seem to consider the further documentation of chronic low back pain throughout the Veteran's medical record. Therefore, the medical opinion is based on a lack of review of the entire treatment record regarding the Veteran's low back and is of limited probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the Board may afford weight to an opinion based on factors such as reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case). Additionally, the VA examiner acknowledged that the Veteran was experiencing low back pain, and that the pain was related to his current condition. The Board has considered the Veteran's lay statements in support of his claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that he experienced low back pain since his injury in service, which has persisted ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran's lay statements are consistent with other medical evidence in the record. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ongoing pain to be at least as probative as the above-noted VA examiner's findings, as the Veteran is truly the only person capable of such observation. Given the evidence discussed above, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran's low back disability is at least as likely as not etiologically related to his active-duty service. The evidence is thus at least evenly balanced as to whether the Veteran's current low back disability is related to the in-service reports of, and treatment for, his lower back. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a low back disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.