Citation Nr: 21071009 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-49 493 DATE: November 29, 2021 ORDER Service connection for a low back disorder is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. Service connection for a bilateral shoulder disorder is denied. Service connection for memory loss is denied. FINDINGS OF FACT 1. The Veteran served on active duty from May 1975 to May 1979. 2. A low back disorder, diagnosed as low back pain, degenerative disc disease (DDD), degenerative joint disease (DJD), and retrolisthesis, was not shown to be chronic in service, was not continuous since service, was not shown to a compensable degree within one year of service, and is not causally or etiologically related to service. 3. Bilateral hearing loss was not shown in service, was not shown to a compensable degree within one year of service, symptoms were not continuous since service, and hearing loss is not causally or etiologically related to service. 4. Tinnitus has been continuous since service. 5. The Veteran reported right shoulder pain on one occasion in service but symptoms were not shown to be chronic; a bilateral shoulder disorder, diagnosed as bilateral trapezius strain, and bilateral DJD of the acromioclavicular (AC) joints, was not shown to be chronic in service, was not continuous since service, was not shown to a compensable degree within one year of service, and is not causally or etiologically related to service. 6. The Veteran asserts memory loss from an in-service head injury; however, a head injury and/or memory loss were not shown in service and are not causally or etiologically related to service. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2021). 2. Bilateral hearing loss was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2021). 3. Tinnitus is presumed to have been incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2021). 4. A bilateral shoulder disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2021). 5. Memory loss was not incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2021, the Veteran and his spouse testified before the Board. A copy of the transcript has been associated with the file. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 U.S.C. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Low Back Disorder As an initial matter, DJD is a chronic disorder under 38 C.F.R. § 3.309; therefore, both direct and presumptive service connection will be addressed. Turning first to direct service connection, the Veteran has been diagnosed with low back pain, DDD, DJD, and retrolisthesis. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, in a May 2016 statement, the Veteran reported developing a herniated disc from having to carry gear and machine gun in service. However, service treatment records (STRs) are absent of complaints, diagnoses, or treatment for a low back disorder. Specifically, he sought treatment for chest pain, pseudofolliculitis barbae (PFB), and right thumb pain, among others, but did not complain of a low back disorder. Therefore, the STRs do not support an in-service incurrence. To the extent that the Veteran asserts that a low back disorder began in service, in a September 2021 VA examination, he reported having back pain in service after falling during basic training. Upon examination, the examiner opined that a low back disorder was less likely than not incurred in service. He reasoned that the Veteran explained that while he had back pain in service, it was not bad enough to go to sick call. Further, the Veteran stated that the back pain worsened only after driving tractor trailer for 12 years. The examiner explained that it was common for truck drivers to have low back pain. There is no contradictory opinion. Therefore, the medical evidence does not support the claim based on direct service connection. Turning to presumptive service connection, the medical evidence showed that the Veteran was discharged from service in 1979 but was not diagnosed with DJD until 2009. As he was discharged in 1979 and symptoms of DJD were not identified until 2009, 30 years later, the medical evidence does not support service connection on a chronic in service or continuity of symptomatology basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. Specifically, the Veteran separated from service in 1979 and was not diagnosed with DJD until 2009. Therefore, this evidence does not support presumptive service connection on a "manifest within one-year from separation" basis, and the medical evidence does not support presumptive service connection on any basis. In addition, clinical records were reviewed. While they show on-going complaints of low back pain, no medical professional attributed the pain to service. Hearing Loss and Tinnitus Hearing loss and tinnitus are recognized by VA as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Turning to the evidence, hearing loss and tinnitus have been shown. In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores, using the Maryland CNC test, are less than 94 percent. In an April 2015 VA examination, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 45 40 50 LEFT 30 40 50 45 60 Speech discrimination scores were 94 percent in the right ear and 100 percent in the left ear. Further, the Veteran reported tinnitus. Reports of his symptoms are also well-documented throughout VA treatment records. Thus, the first element of service connection a current diagnosis has been met. Next, the Veteran had noise exposure while in service. Specifically, in a May 2016 statement, he reported hearing gun fire behind his head while driving an anti-personal carrier which caused hearing loss. Further, in the April 2015 VA examination, he stated that he served in the infantry and fired weapons. Personnel records reflect that his military occupational specialties (MOS) were diesel mechanic and truck driver. STRs do not document complaints, diagnoses, or treatment for hearing loss or tinnitus. Specifically, the Veteran did not report hearing loss or tinnitus at separation. Nonetheless, as described above, he has asserted noise exposure from hearing gunfire. Based on this evidence, in-service noise exposure is established. Further, the Veteran's statements are consistent with the nature of his service, during which he served as a diesel mechanic and truck driver, and his history of service noise exposure is documented throughout VA treatment records. In addition, there is no evidence of record which tends to contradict his testimony. As such, the second element of service connection has been met. As to nexus, in an April 2015 VA examination, the examiner opined that bilateral hearing loss was less likely than not incurred in service. He reasoned that the Veteran had normal hearing throughout service and upon separation. Based on the above, the medical evidence does not support the claim that hearing loss was directly incurred in service. Although the Veteran asserted in-service noise exposure from his MOS as diesel mechanic, he did not report hearing loss in service. Further, the April 2015 VA examiner did not find that bilateral hearing loss was directly incurred in service. Therefore, the medical evidence does not support the claim of direct service connection. Turning to the one-year presumption, bilateral hearing loss did not manifest to a compensable degree within one year of separation from service. In an April 2015 VA examination, the examiner diagnosed bilateral sensorineural hearing loss, but reported no history of prior ear pathology. As the Veteran separated from service in 1979, this is well outside the one-year legal presumption for certain chronic diseases such as hearing loss. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). Importantly, the Veteran did not report hearing loss until 2015. In light of the above, the medical evidence does not support service connection for bilateral hearing loss based on continuity of symptomatology. In sum, the medical evidence weighs against the claim for service connection for hearing loss on a presumptive basis. As to continuity of symptomatology for tinnitus, unlike hearing loss with an onset reported in approximately 2015, the Veteran indicated that he had experienced ringing in his ears after being hit in the right ear with a rifle during training. While there is an absence of complaints or treatment for tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Bilateral Shoulder Disorder As an initial matter, DJD is a chronic disorder under 38 C.F.R. § 3.309. Therefore, both direct and presumptive service connection will be addressed. Turning first to direct service connection, the Veteran reported bilateral shoulder pain in 2008, degenerative changes of the right AC joint were diagnosed in 2014, a bilateral trapezius strain was diagnosed in 2021, and DJD of the left and right AC joints was diagnosed in 2021. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, in a May 2016 statement, the Veteran reported shoulder arthritis from having to carry gear and machine gun in service. Further, STRs reflect that in June 1978, he reported chest pain radiating to the right shoulder; however, a physical assessment was normal, and he did not report shoulder pain at separation. Therefore, the STRs do not support an in-service incurrence. To the extent that the Veteran asserts that a bilateral shoulder disorder began in service, in a September 2021 VA examination, he complained of shoulder pain beginning in 2011. Upon examination, the examiner opined that a bilateral shoulder disorder was less likely than not incurred in service. He reasoned that the Veteran stated that he had no shoulder pain in service and that shoulder pain had started 9 years previously with no known mechanism of injury or trauma. There is no contradictory opinion. Therefore, the medical evidence does not support the claim of direct service connection. Turning to presumptive service connection, the medical evidence showed that the Veteran was discharged from service in 1979 but was not diagnosed with DJD of the right shoulder until 2014, and DJD of the left shoulder until 2021. As he was discharged in 1979 and symptoms of DJD were not identified until 2014 and 2021, over 40 years later, the medical evidence does not support service connection on a chronic in service or continuity of symptomatology basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. Specifically, the Veteran separated from service in 1979 and did not report shoulder pain until 2008. Therefore, this evidence does not support presumptive service connection on a "manifest within one-year from separation" basis, and the medical evidence does not support presumptive service connection on any basis. Clinical records were reviewed. While they show on-going complaints of shoulder pain, no medical professional attributed the pain to service. Memory Loss As to a current disorder, in an August 2017 clinical record, the clinician noted that the Veteran had difficulties with memory. Therefore, the first element of service connection is met. As to an in-service incurrence, in a May 2016 statement, the Veteran reported memory loss after being hit in the head in service; however, STRs are absent of complaints, diagnoses, or treatment related to a head injury or memory loss. Specifically, he sought treatment for chest pain, PFB, and right thumb pain, among others, but did not complain of memory loss or a head injury. Therefore, the STRs do not support an in-service incurrence. To the extent that the Veteran asserts that memory loss began in service, in a September 2021 VA examination, the examiner opined that memory loss was less likely than not due to an in-service head injury but rather was a symptom of posttraumatic stress disorder (PTSD) and insomnia. Based on the above, the medical evidence does not support that memory loss was due to an in-service head injury. In this regard, STRs are absent of complaints, diagnoses, or treatment for a head injury. Further, while the September 2021 VA examination attributed memory loss as a symptom of PTSD and insomnia, the Veteran is not service connected for these disorders. Therefore, secondary service connection is not for application and the medical evidence does not support the claim of service connection. Clinical records were reviewed. While they show on-going complaints of memory loss, no medical professional attributed memory loss to an in-service head injury. The Board has considered the Veteran's lay statements and that these disorders began in service. He is competent to report symptoms because this requires only personal knowledge, as it comes to him through his senses; however, he is not competent to offer an opinion as to the etiology of the current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during her current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Therefore, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28. Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.