Citation Nr: 21071624 Decision Date: 12/01/21 Archive Date: 11/30/21 DOCKET NO. 17-50 825 DATE: December 1, 2021 ORDER Service connection for a back disability is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The evidence of record makes it less likely than not that the Veteran's current back disability occurred during his active service and continued ever since. 2. It is less likely than not (less than 50 percent probability) that the Veteran's bilateral hearing loss began during or within a year of service, or was otherwise caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1988 to April 1994. His military specialty (MOS) was a machine gunner. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Back The Veteran is seeking service connection for a low back disability, which he contends started during service and has continued since service. Service treatment records (STRs) showed that the Veteran had normal spine at the time of his enlistment and he did not report any recurrent back pain at that time. In June 1992, he was seen for sharp pain in lower-mid back when bending over to tie shoes and reported that he had been experiencing low back pain for three to four weeks. The assessment at that time was acute lumbar spine muscle strain. He was given pain medication. In August 1992, he was seen again for low back pain which he reported lasting for one week, and he also reported experiencing some shooting pain through the back of his legs, but he denied experiencing any numbness. The medical officer noted that he had no prior trauma or heavy lifting incident, and that the range of motion of the spine was reduced. The separation physical indicated that the Veteran had a normal spine condition. However, the Veteran reported recurrent back pain at his report of medical history in conjunction with his separation physical. The medical officer noted remote history of muscular low back pain without radiation, weakness, or paresthesia. Although back pain was clearly documented in service, it was specifically noted at the Veteran's separation examination that he had back problems in the remote past, they were not found to be present at that time. As such, there is not continuity of symptomatology found since a back disability was clearly not present at time of separation. Private treatment notes in January 2015 documented that the Veteran complained of low back pain and that he had a prior low back disc surgery. However, there is no suggestion that it had continued since service. While the Veteran currently argues that his back disability is the result of service, he is not shown to have the medical training or expertise to diagnose a back disability or to explain its etiology, as such pertains to the inner workings of the human body. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nevertheless, given the presence of back complaints in service and a current back disability, a VA medical opinion was obtained. A VA examination in November 2016 diagnosed the Veteran with degenerative arthritis of the spine and intervertebral disc syndrome. He reported that he injured his back during a 30 mile hike in 1991, and re-injured his back two other times while in service. He stated that he had experienced periodic pain since that time and that he had a back surgery in 2011. The examiner noted a surgical scar in lower lumbar midline. The examiner opined that the Veteran's back disability was less likely than not (less than 50 percent probability) occurred during or was otherwise caused by his service, and provided the following rationale: There is documented low back pain while in the service. There is a temporal gap of about 19 yrs between the initial injury and documented treatment for reoccurrence of his low back pain in 2011. Degenerative changes of the lumbar spine are universal over time; however, the relationship of these findings to LBP (low back pain) is unclear. Disk degeneration, annular fissures, small diskal protrusions, and facet arthrosis are commonly found in individuals without LBP. [247, 248, 249]. Furthermore, longitudinal studies have demonstrated that the severity, chronicity, and disability associated with LBP correlates more closely with premorbid and comorbid psychosocial-related factors than spinal degenerative changes or LDD [250,251, http://emddicine.medscape.com/article/1144130-overview#a8 While the Veteran has argued that the examiner's opinion amounted to nothing more than conjecture, a review of the examination report shows that the examiner was familiar with the Veteran's medical history and his contentions. The opinion was grounded in the evidence of record. Of note it has not been contradicted by any other medical opinion. As such, the opinion is afforded great weight. Hearing loss The Veteran is seeking service connection for bilateral hearing loss, which he believed started during service and continued to progress after service. As the Veteran's MOS was a machine gunner, noise trauma during service is conceded. However, military noise exposure alone is not considered to be a disability, rather, it must be shown that the military noise exposure caused a hearing loss disability for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A November 2016 VA examination diagnosed the Veteran with bilateral hearing loss for VA purpose. The audiogram showed the following results: HERTZ 500 1000 2000 3000 4000 Maryland CNC R. Ear 20 30 65 60 60 94% L. Ear 20 35 65 70 65 94% However, the November 2016 VA examiner opined that the Veteran's hearing loss was less likely than not (less than 50 percent probability) to have occurred during or been otherwise related to his noise exposure during service. The examiner explained that the Veteran's hearing thresholds did not shift during service by comparing the audiograms at the time of his enlistment and at the time of his separation. The examiner referred to OSHA standard of "threshold shift" which was defined as "a change of 10 dB or more in the average of hearing thresholds at 2000, 3000, and 4000 Hertz." The examiner further explained that, according to a 2005 study by the Institute of Medicine, there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after noise exposure. STRs showed that an audiological testing was conducted at the time of the enlistment in January 1988, which showed the following results: HERTZ 500 1000 2000 3000 4000 R. Ear 10 0 5 5 10 L. Ear 5 0 0 0 5 An audiological testing conducted in December 1988 showed the following results: HERTZ 500 1000 2000 3000 4000 R. Ear 5 5 5 0 5 L. Ear 10 10 5 5 5 An audiological testing conducted at the separation physical in February 1994 showed the following results: HERTZ 500 1000 2000 3000 4000 R. Ear 5 5 5 5 15 L. Ear 5 5 5 10 10 STRs also showed that the Veteran twice denied hearing loss in conjunction with his physical examination in October 1988 and his separation physical. Private records contained audiological testing dated June 2014 and July 2016 which showed bilateral hearing loss. The Veteran reported significant nose exposure in service and during occasional attendance to loud concerts after service. Here, the Board finds that the Veteran credibly reported that he was exposed to military noise during service. His MOS of machine gunner leaves no doubt in this respect. However, his report of having experienced hearing loss since service is contradictory to STRs which showed that he repeatedly denied hearing loss during service, and the separation audiogram which affirmatively failed to show either hearing loss in either ear, or any significant threshold shifts comparing to the enlistment audiogram. As such, the weight of the evidence does not support the finding that the Veteran experienced hearing loss during service. As to the Veteran's contention that his hearing loss was caused by noise exposure during service because his hearing acuity has been worsening over the time after service, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of his hearing loss. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus in this case. For that reason, a VA medical opinion was obtained, but as discussed above, the opinion is against the claim. No medical opinion has been offered that challenges, undermines, or refutes the examiner's opinion. Private treatment records show that his hearing treatment dated back to 2014, which is approximately 20 years after he separated from his service. As such, the evidence does not support the finding the Veteran's hearing loss during service or was otherwise caused by his service. Service connection for bilateral hearing loss is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.