Citation Nr: 21070806 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-26 100 DATE: November 26, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran's low back disability, diagnosed as intervertebral disc syndrome, 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. 2. The Veteran does not have left ear hearing loss disability per VA regulations. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for low back 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. 2. The criteria for entitlement to service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1967 to December 1968. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. Service Connection Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Moreover, where a veteran served continuously for 90 days or more during active service, and arthritis or sensorineural hearing loss manifests to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for low back disability. The Veteran contends that he developed a low back disability due to his in-service duties, including repetitive loading of heavy 8-inch artillery shells and holystoning the ship's deck. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of intervertebral disc syndrome, the preponderance of the evidence weighs against finding that his current low back disability began active service, or is otherwise related to an in-service injury, event, or disease. A review of the Veteran's service treatment reports is completely silent as to any complaints of or treatment for a low back injury. The Veteran's December 1968 separation examination found his spine to be normal. A July 1983 private treatment report noted the Veteran's complaints of low back pain, with associated left leg pain. On the report, the Veteran indicated that his back problems were caused by an injury incurred in 1975, when he was boarded while playing hockey at the Kennebec Ice Arena. He further indicated that this condition was diagnosed as a ruptured disc, L4/L5, and that it required a laminectomy. No reference was made to any inservice back injury or ongoing back problems since service. An August 1983 private treatment report noted the Veteran's complaints of upper and lower back pain, along with a burning sensation in his left leg. The report noted that this condition had been present on and off for years. Where the form asked about his history of any surgery, falls or accidents, the Veteran indicated that he was in a car accident one month earlier and that he had underwent a laminectomy in 1976 after he fell and injured himself while playing hockey. No reference was made to any inservice back injury or ongoing back problems since service. A May 2001 treatment report noted that the Veteran had fallen on his back and broke two ribs. An August 2013 private treatment report noted the Veteran's complaints of lower thoracic pain. The report noted that this injury was due to a fall off a horse while in Iceland. A December 2014 treatment report noted that the Veteran had slipped and fell on stairs outside his house. At his March 2017 hearing before the Decision Review Officer, the Veteran reported a history of having fallen at the Kennebec Ice Area in 1975. He further testified that he ruptured his disc in this fall, and that he underwent a laminectomy of L4/L5 as a result. The May 2017 VA examination for the back opined that the Veteran's current low back disability was less likely than not incurred in or caused by the Veteran's claimed inservice injury. In rendering this opinion, the VA examiner considered the evidence of record, including the Veteran's statements, prior to forming this opinion. The VA examiner physically examined the Veteran and also supported the opinion provided with a sufficient rationale. Specifically, the VA examiner noted that the Veteran's service treatment records were silent as to any complaints of or treatment for a back injury. The VA examiner noted that the Veteran was diagnosed with degenerative disc disease of the lumbar in 1976, 8 years after his separation from service. The VA examiner also noted that the Veteran had many back injuries documented after he left military service, and that his current back problems are most likely due to this post service injuries. As the VA examiner reviewed the Veteran's claims file, physically examined the Veteran, and provided a rationale supporting his opinion, the Board finds the examiner's opinion to be adequate and probative evidence weighing against the Veteran's claim. To the extent the Veteran contends that he has had ongoing back pain since his military service, the Board finds his contentions to be lacking in credibility. The Veteran's service treatment records are silent as to any complaints of or treatment for back pain. At his Board hearing, the Veteran testified that he did not seek any inservice treatment for his back pain based upon advice from his father not to be branded a malingerer. Nevertheless, a review of the Veteran's service treatment records reflect treatment for a variety of other conditions. Moreover, the first available post service treatment records noting complaints of low back pain are completely silent as to any inservice back injury and/or complaints of ongoing back pain since his separation from service. Instead, they repeatedly list a history consisting of a low back injury arising from an injury while playing hockey in 1976. These post service treatment records also fail to reference any inservice injuries or complaints of back pain. The Veteran in this case is also not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical and pathological relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the May 2017 VA examiner's opinion. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for a low back disability. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for left ear hearing loss. While the Veteran contends that he has left hearing loss, the determination of whether his hearing loss meets VA standards to qualify as a hearing loss disability must be supported by testing compliant with VA regulations. 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz 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. As for his claimed left ear hearing loss, the symptoms the Veteran has reported are not supported by medical professional testing meeting the VA standards for a disability under 38 C.F.R. § 3.385. While the Veteran is competent to describe his symptoms, the determination of whether hearing loss meets the criteria for a disability under VA regulations requires specialized medical knowledge or training. The Veteran's statements alone therefore cannot serve as competent evidence of a current disability. To that end, the Veteran's May 2017 VA examination for hearing loss and tinnitus included audiological testing which did not reflect a hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385 in the left ear. The Veteran did not have three frequencies at 26 decibels or higher, he did not have a single frequency at 40 decibels or higher, and his speech discrimination score in his right ear was 100 percent. Thus, the Board finds that the most competent evidence of record does not show that the Veteran's reported left ear hearing loss meets the criteria to be considered a disability under VA regulations. Accordingly, the preponderance of the evidence is against the Veteran's claim for left ear hearing loss; there is no doubt to be resolved; and service connection for left ear hearing loss must be denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, 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.