Citation Nr: 21075416 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-50 334A DATE: December 20, 2021 ORDER Service connection for right ear hearing loss is granted. Service connection for a lumbar spine disability is granted. REMANDED An initial compensable rating for the service-connected left ear hearing loss is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his current right ear hearing loss is etiologically related to his active service. 2. Resolving reasonable doubt in the Veteran's favor, he began experiencing symptoms of his current lumbar spine disability while in service, and he has continued to experience those symptoms since separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to July 1987 and from January 1991 to June 1991. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2016 rating decision. The Veteran requested a hearing before the Board, which was scheduled in June 2021, but did not appear for the hearing and did not provide any arguments of good cause for his failure to appear at the scheduled hearing. The Board, thus, considering his request for a hearing withdrawn. Service Connection 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; 38 C.F.R. § 3.303(a). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Right Ear Hearing Loss The Veteran seeks service connection for his right ear hearing loss. As an initial matter, the Board notes that the Veteran has a current diagnosis of right ear hearing loss sufficient for VA compensation purposes. See February 2016 VA examination; 38 C.F.R. § 3.385. Further, his in-service noise exposure has been conceded, as he is currently service connected for left ear hearing loss and for tinnitus. As both the current disability and in-service event elements of the claim have been met, the only question remaining before the Board is whether there is a causal relationship between his current right ear hearing loss disability and his active service. At the February 2016 VA audiological examination, the examiner confirmed that the Veteran has a current diagnosis of right ear hearing loss. Although the examiner opined that the Veteran's left ear hearing loss was at least as likely related to his active service, the examiner opined that the Veteran's right ear hearing loss was less likely than not a result of his active service. This opinion was based solely on the lack of a threshold shift in the Veteran's right ear at separation from service. While the Board cannot ignore or disregard the VA examiner's opinion, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the examiner relied solely on the absence of a documented threshold shift change in the Veteran's right ear at separation from service. A finding that his right ear hearing loss disability was not present at service separation is not a sufficient rationale, by itself, to conclude that a relationship to service is less likely than not. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The examiner also failed to address the Veteran's conceded in service noise exposure in regard to his right ear and failed to provide an adequate explanation as to how his left ear hearing loss was related to his service, but his right ear hearing loss was not. The Board affords the February 2016 opinion little, if any, probative value. In light of the above, the evidence is at least in equipoise as to whether the Veteran's right ear hearing loss began in service, to include as a result of in-service noise exposure. Resolving any reasonable doubt in the Veteran's favor, the Board finds that his right ear hearing loss is at least as likely as not related to his in-service noise exposure. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Of particular importance to the Board in this regard is the fact that the Veteran has competently and credibly asserted that he has experienced hearing loss in his right ear since service. Thus, service connection for right ear hearing loss is granted. Lumbar Spine Disability The Veteran also seeks service connection for his lumbar spine disability. Review of his service treatment records reveal that he was treated for lower back pain in June 1987. He also has a current diagnosis of degenerative disc disease (DDD) of the lumbar spine, lumbar radiculopathy, and spinal stenosis. Thus, he meets the current diagnosis and in-service event elements of the claim and the only remaining issue is whether a nexus (causal relationship) exists between his lumbar spine disability and his active duty. In this regard, the Veteran was afforded a VA examination in February 2016. The Veteran reported that he began experiencing lower back pain during service. He reported that the pain is constant on both sides of his lower back, with occasional stabbing pains. He also reported that the pain radiates down to both lower extremities and that he occasionally experiences numbness and tingling in both of his legs and feet. The examiner opined that the Veteran's lumbar spine disability was less likely than not related to his active service. The examiner supported this opinion by explaining that the Veteran only reported experiencing lower back pain in service once (despite receiving medical treatment for other conditions during service) and that there was no medical evidence that the Veteran had a chronic back condition until 2001, approximately 10 years after separation from service. While the Board cannot ignore or disregard the VA examiner's medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Willis, 1 Vet. App. at 66; Wilson, 2 Vet. App. at 614. Here, the examiner failed to address the Veteran's competent statements as to onset and continuity of his symptomatology. The examiner noted that there was no medical evidence of a chronic back condition until 2001, despite the Veteran reporting to the examiner that he has been experiencing lower back pain since service. As noted above, as a layperson the Veteran is competent to report on the onset and continuity of his current symptomatology. Layno, 6 Vet. App. at 470. Thus, the Board afford the February 2016 opinion little, if any, probative value. In light of the above, the evidence is at least in equipoise as to whether the Veteran's current lumbar spine disability began in or is a result of his service. Resolving any reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that his lumbar spine disability onset during his service and has continued since then. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Of particular importance to the Board in this regard is the fact that the Veteran has competently and credibly asserted that he has experienced low back pain since service. Thus, service connection for a lumbar spine disability is granted. REASONS FOR REMAND As the Board has granted the claim for service connection for right ear hearing loss herein, the claim for an increased rating for left ear hearing loss must be remanded. When only one ear exhibits service-connected hearing loss, the disability is rated on its own. However, when the hearing loss in both ears is service connected, the disabilities are combined and rated together as bilateral hearing loss. 38 C.F.R. § 4.85. Therefore, the Board finds that the claim for an initial compensable rating for the Veteran's left ear hearing loss is inextricably intertwined with the rating that may be assigned for his now service-connected right ear hearing loss. Additionally, the Board notes that the last audiological examination of record is more than 5 years old. Upon remand, the Veteran should be afforded a new VA audiological examination to assess the current severity of his now service-connected bilateral hearing loss. Accordingly, this matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate audiological examination to determine the current severity of his now service-connected bilateral hearing loss. The entire claims file must be made available to, and reviewed by, the examiner in conjunction with the examination. Any indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. 2. Then, adjudicate the issue of entitlement to an initial compensable rating for the now service-connected bilateral hearing loss. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.