Citation Nr: 21068670 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 18-24 638 DATE: November 12, 2021 ORDER Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a low back disability associated with his service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to May 1968, and from December 1990 to June 1991. He served honorably in the United States Army and Air Force, with additional service in the Air Force Reserve and Air National Guard. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter has been advanced on the Board's docket owing to the Veteran's age. 38 U.S.C. § 7107; 38 C.F.R. § 20.900. Entitlement to service connection for a low back disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability, by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of having a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence of record in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence record for this appeal, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Here, the Veteran contends in his notice of disagreement that he has a current low back disability associated with an in-service accident at an air cargo drop zone where he fell out of the back of a vehicle. Service treatment records show he fell off a truck on November 7, 1981. He reported he was participating in an Air Force Reserve activity. During the July 2021 Board hearing, he testified that he has had his low back problem continuously ever since then. Private treatment records dated June 2018 contain diagnoses of other spondylosis, lumbar region, and radiculopathy, lumbar region; low back pain is also noted in the assessment. Although the clinician opined that the Veteran's "low back symptoms, are more likely than not related to his active duty service", the Board finds that the clinician's opinion has no probative value. First, it is based upon the Veteran's reports of continuity of symptoms since service which have been deemed to lack credibility. Second, no rationale was provided, the statement is merely conclusory. Elsewhere in the same private treatment record and inconsistent with the claimed onset of low back problems in 1981, the clinician wrote that the Veteran reported he has had low back pain constantly for 51 years. Absent some credible basis to indicate a link between the current disability and service, the evidence is insufficient to trigger VA's duty to assist in obtaining a medical opinion. However, the Board notes that when the Veteran was referred to that clinician in June 2016, it was in connection with neck and shoulder pain; no low back condition was mentioned by the Veteran or the clinician pursuant to the private treatment records from that date which included a whole body review of systems. December 2016 private treatment records continued to show no low back complaints or notations despite another whole body review of systems, and that was the last time the clinician treated the Veteran prior to June 2018 when the statement about his service was offered. If low back pain was being experienced in June or December 2016 it is reasonable to expect it would have been noted at those times given the Veteran reported neck problems and the treatment records note a whole body review of systems. The Veteran was afforded a VA examination in September 2018. At that time, the examiner diagnosed him with degenerative arthritis and intervertebral disc syndrome of the lumbar spine. Elsewhere, under medical history, the examiner recorded that the Veteran fell off a truck during a training exercise in the 1990s (not the 1980s). The Veteran stated that he has had back pain since then. The Veteran's service treatment records confirm that he fell off of a truck on November 7, 1981. The treatment record notes the primary admission diagnosis was concussion. The record shows he was not admitted to the hospital and he was sent home for recuperation until November 10, at which time he was medically cleared to return to duty. There was no documentation of a low back problem at the time of the 1981 incident when it would have been reasonable to expect a report of injuries sustained aside from a concussion. The Board need not reach the question as to whether this event occurred during a period of qualifying service. Later service treatment records following the 1981 incident also tend to show no low back problems. For example, in an October 1984 report of medical history, the Veteran himself affirmatively indicated that he did not have recurrent back pain, and he wrote that his health was "excellent." If the Veteran experienced recurrent back pain in 1984, the Board finds it would have been reasonable for such symptoms to have been acknowledged by the Veteran. On examination by the military clinician, his spine was determined to be normal. Four years later, in August 1988, the Veteran again indicated that he did not have recurrent back pain, while at the same time he indicated that he did manifest other conditions such as chest pain or pressure and growths/cysts. On examination by the military clinician, his spine was again determined to be normal. If the Veteran experienced recurrent back pain in 1988, the Board finds it would have been reasonable for such symptoms to have been noted by the Veteran, particularly as he reported other conditions at that time. The lack of reports of back problems at the time of the November 1981 injury and the Veteran's statements denying low back symptomatology multiple times following the 1981 incident are inconsistent with his more recent contrary testimony and statements in support of this claim. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) ("Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony"); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The service record evidence documents the Veteran's presentation of information to medical treatment providers, including in the context of seeking medical evaluation / care. It is reasonable to expect that the Veteran's report of pertinent health history in such a context would be complete and accurate to the best of his knowledge. The Board finds that this is a factor contributing to the relative credibility of the earlier statements. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth to receive proper care). During the July 2021 Board hearing, the Veteran testified both that he could not honestly say whether he received private treatment for his back after the incident in November 1981, and then moments later he testified that he did see a private doctor a month or two later. He further testified that if he did not obtain any medical records from that treatment and associate them with the claims file in 30 days, the Board should still move ahead with a decision on this claim. No such records have been received now several months later, and the Board will honor the Veteran's request to move forward with adjudication. The Board finds that the Veteran has a current low back disability and acknowledges that he sustained an injury assessed by medical providers at the time as a concussion in November 1981. However, the Board finds that the Veteran is not credible as to his statements about the continuity of his low back symptoms since then because his own statements have been inconsistent with each other, as well as with the credible, probative medical evidence of record dating back to the time of the incident itself. Accordingly, entitlement to service connection for a low back disability is denied because the preponderance of the evidence is against a finding that the Veteran's low back disabilities are associated with his service. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss (BHL) is remanded. Here, the Veteran was afforded a VA examination for his BHL in February 2015. At that time, it was determined that the Veteran has hearing loss for VA purposes but the examiner opined that it is not at least as likely as not that BHL was caused by or a result of an event in military service. The examiner's rationale was based on audiogram results from 1979, 1984, and 1988, as well as consideration of the Veteran's military occupation working in information management during his second period of active service from 1990 to 1991. However, the examiner also repeatedly made clear that the Veteran's service treatment records from his Army active duty period from 1965 to 1968 were not available for review. This is significant including because the Veteran has contended that his BHL is associated with his Army service. Now, the record shows that the Veteran's Army service treatment and personnel records have been added to the claims file. Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Accordingly, the Board concludes that a remand for an addendum opinion is warranted so that an appropriate VA clinician may have the opportunity to review the pertinent service treatment records bearing on the Veteran's contention that his BHL is associated with his Army service. In providing the addendum opinion, the clinician will be directed to not consider statements from the Veteran regarding his report of an artillery assignment he had in an air drop zone while in the Army. The Board has determined that the Veteran is not credible as to those specific statements as they are inconsistent with the other evidence of record. The record shows that his DD-214 lists his Army MOS as a general clerk for the duration of his service from May 1965 to May 1968 consistent with his detailed personnel records. The DD-214 also shows that he had two courses of education as a personnel specialist during that time. By contrast, VA treatment records dated April 2018 show that the Veteran has claimed to a VA clinician that his MOS was infantry while he was in the Army. What is more, VA treatment records from July 13, 2018 show that the Veteran stated he was interested in initiating a claim for hearing loss, he had destroyed his hearing aids by putting them through the washing machine in his pants pocket, and he was not yet eligible for new hearing aids because he had already used the warranty. Accordingly, under these circumstances, VA will fulfill its obligation to provide an adequate opinion while avoiding further development focused on evidence that the Board has found not to be credible. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder is remanded. During the pendency of this appeal, the Veteran was previously represented by a different VSO. At that time, a statement of the case (SOC) was issued in April 2018 as to his claims for service connection for a low back condition, BHL, and the present claim for a higher initial rating for PTSD. In May 2018, the Veteran submitted a substantive appeal as to all three claims. However, just days later, the Veteran and his current VSO representative executed a new VA Form 21-22 changing his representation. A new substantive appeal was submitted but omitting the claim for a higher rating for PTSD. Between the issuance of the SOC and when the appeal was certified to the Board, updated VA treatment records relevant to the Veteran's PTSD claim were added to the claims file on July 30, 2018 and an SSOC was issued on August 12, 2019; however, the SSOC only addressed the low back condition and BHL claims and did not address the PTSD claim at all, to include the updated VA treatment records. When this matter had been certified to the Board, the Veteran's new representative submitted a statement identifying the issues on appeal as service connection for a low back condition and BHL only. However, during the July 2021 hearing, the Veteran and his representative presented testimony and argument regarding a higher rating for PTSD. As there has not been a clear indication that the original appeal of the PTSD claim has been withdrawn, and resolving all reasonable doubt in favor of the Veteran, the Board concludes that the claim for a higher initial rating for PTSD is before the Board at this time. However, pursuant to 38 C.F.R. § 19.31, the AOJ will furnish the appellant and his or her representative, if any, a Supplemental Statement of the Case if the AOJ receives additional pertinent evidence after an SOC has been issued and before the appeal is certified to the Board of Veterans' Appeals and the appellate record is transferred to the Board. As described above, this is the case here. As a result, remand is necessary for initial review of the newly associated evidence by the RO and, if findings are not in the Veteran's favor, issuance of an SSOC. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for his bilateral hearing loss and posttraumatic stress disorder. 2. After the action in paragraph 1 is complete, please arrange for the Veteran's claims-file to be forwarded to a VA clinician for clarifying addenda / opinions regarding the etiology of the Veteran's bilateral hearing loss. A new examination should only be performed if the medical professional providing the opinions finds one is necessary. The clinician must review the Veteran's claims file, and based on such review (and, if necessary, examination of the Veteran), provide opinions responding to the question below. (a.) Is it at least as likely as not (a 50 percent degree of probability or greater) that the Veteran's bilateral hearing loss is related to an in-service injury, event, or disease? The clinician is advised that the Board has determined that the Veteran's statements about his exposure to acoustic trauma in-service are not credible to the extent they are reported to be due to an artillery military occupation specialty (MOS) he had in an air drop zone while in the Army as the Veteran's MOS was as a Clerk; accordingly, statement related to an artillery MOS should not be considered in rendering an opinion. The clinician must explain the rationale for all opinions and conclusions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the record has been determined to be complete, if any claim is not granted in full, please issue a SSOC and provide the appropriate time for response. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fales, 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.