Citation Nr: 21071326 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-54 265 DATE: November 30, 2021 ORDER Entitlement to service connection for a low back condition is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's low back disability did not onset in service, nor is it etiologically related to service or a service-connected disability. 2. The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss began during active service or is otherwise related to an in-service injury or disease. 3. Affording the Veteran the benefit of the doubt, it is at least as likely as not that his tinnitus onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was remanded by the Board in February 2021. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was afforded VA examinations for his low back, bilateral hearing loss and tinnitus claims. After the VA examinations were conducted, the issues were readjudicated and the Veteran was sent a supplemental statement of the case in July 2021. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2014). Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a); See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). 1. Entitlement to service connection for a low back condition The Veteran asserts that his current low back condition is related to a motor vehicle accident and/or falling in the shower during service. For the reasons outlined below, the Board finds that the evidence is against service connection. As an initial matter, the Veteran has a current low back disability. Specifically, at his June 2021 VA examination, the examiner noted diagnoses of degenerative arthritis of the lower spine and spinal fusion. Next, the Veteran's service treatment records (STRs) include reports of low back pain. In a July 1968 treatment note, he reported back pain lasting for two days after he fell on his back. At his March 1969 separation examination, he responded "yes" to "back trouble of any kind". Moreover, the separation examiner noted his fall in 1968 that resulted in muscle spasms, with continuing mild burning sensation after sitting or standing at attention. However, there is nothing in his STRs regarding an in-service motor vehicle accident. The first post-service indication of low back pain occurs in November 1996, when he reported back pain to his private physician following a motor vehicle accident in October 1996. In March 1997, his private physician noted his low back pain was caused by his 1996 motor vehicle crash. A lumbar laminectomy was conducted in 1997 for a benign tumor of his spinal canal. Private treatment records, furnished by the Social Security Administration (SSA), show he was in another motor vehicle accident (MVA) in July 2006, resulting in low back pain with sleep disturbances. A February 2007 private treatment note furnished by the SSA, shows the Veteran reported his low back pain began in the 1990s following his first MVA, but resolved itself until his second MVA in 2006 when it became recurrent. During a May 2007 private treatment visit, the Veteran reported he was "pain free" before his 2006 MVA. Finally, in a September 2007 physical therapy note, he reported the onset of his low back pain as the July 2006 MVA. While the Veteran reports persistent back pain since service, extensive medical records indicate his recurrent low back pain began after his 2006 MVA. Moreover, the Board is unable to grant service connection based on the Veteran's statements alone. Notably, given that the Veteran stated that he was "pain free" before his 2006 accident, his statements of continuous symptoms is contradicted by the evidence of record. Accordingly, the medical evidence shows that service connection is not warranted based on continuity of symptomatology. Finally, service connection may also be granted when the evidence establishes a medical nexus between active duty and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's low back disability to active-duty service. Specifically, the Board places significant value on the opinion of a VA examiner who evaluated the Veteran's low back in June 2021. The Board notes the Veteran underwent a VA examination for his low back condition in August 2017. While this examiner opined against service connection, the Board found the rationale to be inadequate as it was based on an incorrect factual premise and failed to consider the Veteran's reports of ongoing symptomatology since service. Therefore, the Board places no value on the August 2017 VA opinion. The Veteran was afforded an in-person VA examination in June 2021 for his low back condition. He reported the onset of his low back symptoms as 1967, following a MVA during service. The examiner reviewed his records, to include in-service complaints of low back pain, and opined against service connection. In support, the examiner wrote that, while he reported mild low back pain during his March 1969 separation examination, there was no ongoing treatment for 25 years following service. The examiner noted there was nothing in the STRs regarding an in-service MVA. Moreover, his degenerative arthritis is more likely caused by his post-service MVAs and the natural progression of his age. Altogether, according to the examiner, there is no indication that the Veteran's current low back disability is related to his active-duty service. In sum, the most probative evidence of record shows no link between the Veteran's low back disability and an event, injury, or disease incurred in service. 2. Entitlement to service connection for bilateral hearing loss The Veteran asserts that he developed hearing loss as a result of exposure to noise. He testified that while in Advanced Individual Training (AIT) to become a wheeled vehicle mechanic, he worked on 12-cylinder diesel tank engines and the instructor had the trainees remove their hearing protection while he ran the engines to their highest level, resulting in his inability to hear for two to three days. He relates his current hearing loss to this incident in service. In cases where a hearing loss disability is claimed, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above frequencies 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. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. §3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385; Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under38C.F.R. §3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. In this case, based on the evidence of record, the Board determines that service connection is not warranted for the Veteran's bilateral hearing loss. As an initial matter, the Board finds the Veteran's statements regarding in-service acoustic trauma credible; according to his personnel records and his testimony, he experienced noise from engines while in AIT at Aberdeen Proving Ground. Further, while he changed jobs after AIT to personnel management specialist, the nature of his service in AIT as a mechanic trainee is consistent with a military occupation where significant noise exposure over a prolonged period is likely. Thus, the Board concedes exposure to hazardous noise for the purposes of establishing an in-service event. However, while the Veteran has a current diagnosis of bilateral hearing loss per his July 2021 examination report, the preponderance of the evidence weighs against finding that his hearing loss was a result of such exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309. First, the Veteran did not report symptoms of hearing loss during any of his in-service treatment, despite credibly reporting to his VA examiner that he was exposed to engine noises. The Veteran's in-service treatment records, and his March 1969 separation examination report do not mention chronic hearing loss. Moreover, the Veteran wrote in his March 1969 Report of Medical History that he does not have, nor has he ever had hearing loss. As pointed out by the July 2021 examiner, no permanent threshold shift in the Veteran's puretone measurements was observed. Therefore, there is not only no indication of chronic hearing loss in service, but also no indication that the Veteran had more than transitory, isolated incidents of hearing loss in service. Next, the post-service evidence does not reflect symptoms related to sensorineural hearing loss for many years after the Veteran left active-duty service. The first clinical indication of hearing loss was not until his September 2016 VA examination. Thus, continuity of symptomatology is not warranted based on the clinical evidence. As part of his claim, the Board recognizes the Veteran's statement that he was diagnosed with hearing loss in the early to mid-1970s after discharge, thus apparently asserting continuity. Unfortunately, the Board is unable to grant service connection based on the Veteran's statement alone, as it is inconsistent with the other evidence of record. Notably, the Veteran stated that his hearing loss onset as a result of exposure to tank engine noises. According to the Veteran, he was first diagnosed with hearing loss in the early to mid-1970s, several years after service. This statement is inconsistent with the Veteran's prior statements in the private treatment records throughout the 1990s and early 2000s. For example, in November 1996, despite noting back pain, tinnitus and other issues, he makes no mention of hearing loss. This inconsistency in the Veteran's statements limits the probative value of his assertions of continuity. Finally, service connection may also be granted when the evidence establishes a medical nexus between active-duty service and current complaints. In this case, the weight of the competent evidence does not attribute the Veteran's bilateral hearing loss to active duty. In so deciding, the Board places significant value on the opinions of the July 2021 VA examiner who evaluated the Veteran's symptoms. The Board notes the Veteran underwent a VA examination for his hearing loss in September 2016. However, the Board found the associated opinion and rationale to be inadequate for rating purposes, thus, the September 2016 opinion is of no probative value. The evidence of record weighs against finding a nexus to service. The July 2021 VA examiner notes the Veteran's hearing was normal at entrance and at separation, and there was no in-service threshold shift beyond normal variations. The VA examiner noted the lack of chronic hearing loss symptoms in-service. Despite the examiner listing his MOS of personnel management specialist having a low probability for hazardous noise exposure, the examiner conceded hazardous noise exposure. The Veteran reported post-service noise exposure as hunting with ear protection. As a result, the examiner opined that it was less likely than not that the Veteran's current bilateral hearing loss is related to service. The Veteran, through his representative, argues that he should be afforded a new examination for his hearing loss because the July 2021 examiner did not consider his lay statements. The Board notes the examiner examined the Veteran in-person, stating that "[a]ll available records were reviewed and findings considered" when writing their opinion. While the examiner did not explicitly address the Veteran's statements, they did review the record which includes his testimony and his written statements. Moreover, despite listing his MOS as having a low probability of noise exposure, the examiner conceded in-service hazardous noise exposure. This indicates that the examiner considered the Veteran's statements regarding his service and hearing loss, as otherwise hazardous noise exposure would not be conceded. Because the examiner indicated they reviewed the entire record and conceded in-service noise exposure, the Board finds the July 2021 opinion to be adequate for rating purposes and a remand for another VA examination is not warranted. In arriving at these conclusions, the Board acknowledges the Veteran's statements relating his current low back disorder and bilateral hearing loss to active service. Specifically, the Veteran asserts that his low back symptoms were caused by an in-service MVA and a fall in the shower, and his hearing loss caused by his noise exposure to tank engines during AIT. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiologies of his low back disability and hearing loss. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disabilities are not diagnosed by unique and readily identifiable features, it does not have a simple identification that a layperson is competent to make. The Veteran is not competent to identify a nexus between his disabilities and service. While the Board does not dispute the Veteran's credibility in describing his symptoms or the conditions of his service, the weight of the medical evidence is against a finding that they are etiologically related to his active service. Therefore, the Veteran's lay statements that his current low back disability and hearing loss are related to service are found to lack competency. In sum, the most probative evidence of record shows no evidence linking the Veteran's low back disability and hearing loss to any event, injury, or disease incurred in service. Based on the evidence of record, the Veteran's claims must be denied. 3. Entitlement to service connection for tinnitus However, the Board can grant service connection for tinnitus, as the lay and medical evidence is in equipoise as to whether this disability is related to service. Similar to hearing loss, the Veteran's statements of noise exposure to tank engines are consistent with his AIT training as a vehicle mechanic. The Veteran also testified that his tinnitus began during AIT and has continued since. The Veteran's reports are competent and credible, and in-service noise exposure is conceded. Service treatment records are negative for complaints, diagnosis, or treatment of tinnitus from noise exposure. Moreover, the Veteran's July 2021 VA examiner opined that the Veteran's tinnitus is less likely related to his service. Nonetheless, the opinion was based on no in-service hearing threshold shift and no complaints of tinnitus in-service. Here, the Board observes that the Veteran, as a lay person, is competent to report observable symptomatology of an injury, to include tinnitus. Barr v. Nicholson, 21Vet. App. 303, 307-08 (2007). Nonetheless, even if it was not reported to in-service medical personnel, the Veteran has submitted competent and credible lay testimony of intermittent tinnitus after exposure to tank engines. The negative nexus opinion, in the Board's view, was based on the Veteran's failure to report tinnitus symptoms in-service. The Board finds more probative value in the Veteran's direct statements, indicating that tinnitus continuously presented to some degree since service. The Board finds that the Veteran's competent and credible statements of ringing and pain in the ears since service place his appeal at least in equipoise. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and grants service connection for tinnitus. See Gilbert v. Derwinski, 1Vet. App.49 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald