Citation Nr: 21076133 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-53 684 DATE: December 22, 2021 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for lacerations of the lower back is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that tinnitus began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran had a pre-existing bilateral hearing loss disability that was noted upon his entry into active service; a preponderance of the evidence is against finding that pre-existing bilateral hearing loss disability was aggravated during active service. 3. The preponderance of the evidence is against finding that the Veteran's current back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for lacerations of the lower back have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1982 to July 1985. The Veteran testified before the undersigned at a May 2021 Board Hearing. The claims file contains a hearing transcript. In a June 2021 Board Decision, the above-referenced claims were remanded to the RO for further evidentiary development and readjudication. The RO has substantially complied with the Board's remand instructions with respect to the above-listed claims, so the Board may proceed to their merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran's current claimed disabilities include bilateral hearing loss and tinnitus which are considered chronic diseases listed under 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-39. In addition, arthritis is specifically included in the list of chronic diseases. Therefore, the Board has considered and applied the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology. 1. Entitlement to service connection for tinnitus The Veteran contends that he developed tinnitus during his active service due to exposure to excessive noise, particularly including during firearms training, and that his tinnitus is a chronic condition that has continued to the present. See, e.g., May 2021 Board Hearing Tr. at 3 ("when I first started shooting those weapons and handling those things, I had a constant ringing in my ear from, from all that time that I was in the military."). 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 tinnitus, and the Veteran's reports of being exposed to loud noises during weapons training are credible, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease. As an initial matter, the Veteran declined to undergo a medical examination in connection with his separation from the military and indicated his health had not declined. See July 1985 Disposition Form (signed by Veteran and acknowledging right to have a medical examination); see also May 2021 Board Hearing Tr. at 2 (discussing the disposition form and further noting that the Veteran had indicated there were "no changes... in [his] medical status during [his] service."). His service medical records otherwise fail to contain any indication that the Veteran experienced tinnitus during his active service. In making this finding, the Board acknowledges the Veteran's testimony that he complained about ringing and/or hearing problems during service and that medical providers "put some drops in my ears" which stopped the hurting. May 2021 Board Hearing Tr. at 4. However, his service medical records do not document any such treatment, though it documents treatment for various other conditions (e.g., infection treated with antibiotics, ankle injury). The Board finds that the treatment of ear symptoms using medicated drops ordinarily would have been recorded in this Veteran's service medical records. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding the Board must first establish a proper foundation for drawing adverse inferences from an absence of documentation); AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible). The fact that the treatment alleged by the Veteran was not recorded reduces his credibility as a reliable historian. However, the Board ultimately puts very little to no weight on this relatively minor point. More pertinently, VA treatment records show the Veteran was not diagnosed with tinnitus until many decades after his active service. The September 2017 VA examiner documented the Veteran's report of "gradual onset of tinnitus approximately 10 years ago" without a specific precipitating event. The Veteran's report of onset many decades after service, as late as sometime in or shortly after 2007, is consistent with VA treatment records that specifically indicated that the Veteran did not have tinnitus as late as June 2008. See June 2008 VA Progress Note ("Ears: No hearing loss, tinnitus, vertigo or ear aches."). This evidence weighs heavily against the contention that the Veteran experienced onset of constant ringing in his ears in service which has continued to the present, i.e., it weighs against finding a chronicity of symptomatology of tinnitus. These records (consisting of the Veteran's statements disclaiming a change in medical status, treatment records finding no tinnitus as late as 2008, and the Veteran's report to a VA examiner that his tinnitus had onset roughly 10 years prior to the VA exam) outweigh the Veteran's Board hearing testimony which suggests constant ringing in his ears during service and since service. See, e.g., May 2021 Board Hearing Tr. at 3-4. The Board acknowledges that there is some evidence for and against the claim, but finds that evidence against in-service onset and chronicity is more persuasive because it includes neutral evaluations by medical professionals, is more reliable because it includes assessments made for treatment purposes, and is more credible because the evidence was either created outside the context of a claim for benefits or are statements against interest by the Veteran. The Veteran's Board hearing testimony conflicted with some contemporaneous documentation, which undermines the overall credibility of his Board hearing testimony in that it suggests he was not a reliable historian at that hearing. Compare May 2021 Board Hearing Tr. at 2-3 (testifying that he used cigarette butts for hearing protection because: "They didn't give us no hearing protection back then.") with July 1982 STR (indicating the Veteran was issued "Earplug, small (T), green"). The greater weight of the evidence supports finding that the Veteran first had onset of his current tinnitus over two decades after his separation from active service. While the Veteran is competent to report having experienced symptoms of ringing in his ears in service and intermittently or constantly since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of tinnitus that is related to in-service noise exposure. The issue is medically complex, as it requires knowledge of the pathology of disorders of the ear, such as tinnitus, and the anatomical causes of subjective symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The September 2017 VA examiner opined that the Veteran's tinnitus is not at least as likely as not related to an in-service injury, event, or disease, including in-service hazardous noise exposure. The rationale was that the Veteran denied any significant medical issues at discharge, there were no reports or complaints of tinnitus in the service medical records, and onset was many years subsequent to active duty service and, so, many years after any in-service hazardous noise exposure. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no competent opinions supporting the Veteran's contention that his tinnitus is related to his active service. Consequently, the greater weight of the evidence is against the Veteran's claim. Entitlement to service connection for tinnitus is denied. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that he had hazardous noise exposure during his active service which caused his current bilateral hearing loss. Despite this contention, the Veteran has acknowledged that his entrance examination documented pre-existing bilateral sensorineural hearing loss. See, e.g., May 2021 Board Hearing Tr. at 2 ("The entrance exam you had on your enlistment in November of 1981 shows significant preexisting high-frequency hearing loss in both ears."); see also November 1981 Report of Medical Examination (showing bilateral hearing loss with thresholds from 30 to 70 decibels in the frequencies of 3000 and 4000). Where "a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). However, a veteran may bring a claim for service-connected aggravation of a disability noted upon entry into service. Id. The burden to establish aggravation falls on the veteran making the claim. Id.; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.304(b). This Veteran was noted to have bilateral hearing loss upon entry into service and, therefore, the Veteran has the burden of establishing aggravation. The November 1981 Report of Medical Examination documented pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 10 50 30 LEFT 0 0 5 70 60 The question for the Board is whether the Veteran's pre-existing bilateral hearing disability noted on entry into service was aggravated during his active service. The Board concludes that, while the Veteran has a current diagnosis of bilateral sensorineural hearing loss, the preponderance of the evidence weighs against finding that the Veteran's pre-existing bilateral hearing loss disability was aggravated during service. First, there is no indication in the Veteran's service medical records that he had complaints of decreased hearing acuity or other signs of symptoms of a worsening of his pre-existing hearing disability. As discussed above, the Veteran declined a medical examination at his separation which may have documented any alleged worsening of his pre-existing hearing loss disability and explicitly denied any "changes in medical status." See July 1985 Disposition Form (signed by Veteran); see also May 2021 Board Hearing Tr. at 2 (discussing the disposition form and further noting that the Veteran had indicated there were "no changes... in [his] medical status during [his] service."). This is particularly significant where, as here, the Veteran has the burden of proving aggravation. Second, VA treatment records do not document complaints of or treatment for hearing loss until decades after his active service which is consistent with stable hearing loss that had not noticeably deteriorated during service or, more likely than not, for many years after service. Third, the only competent opinions of record are against the claim. The September 2017 VA examiner opined that the Veteran's current hearing loss is "most likely the result of same etiology as his pre-existing bilateral hearing loss, and therefore less likely than not related to military hazardous noise exposure." The examiner explained that the Veteran had pre-existing hearing loss, that the service medical records did not document complaints, symptoms, or treatment for any hearing loss or hearing-related conditions, and that the Veteran explicitly denied any "changes in medical status" during his service. The examiner's opinion weighs against finding that there was any worsening of the bilateral hearing loss during service, weighs in favor of finding that the current hearing loss is consistent with his pre-existing hearing loss in 1981, and, so, weighs against finding that the Veteran's current bilateral hearing loss was aggravated by or otherwise related to military hazardous noise exposure. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. While the Veteran is competent to report having experienced symptoms of decreased hearing acuity in service and since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a worsening of or aggravation of his pre-existing hearing loss disability. The issue is medically complex, as it requires knowledge of the causes and pathology of hearing loss, the mechanisms and characteristics of the progression of sensorineural hearing loss, and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record does not reveal that the Veteran has the required expertise. Therefore, his opinions on the pertinent medical issues (as distinct from his testimony regarding subjective awareness of symptoms) are entitled to no probative weight. As explained to the Veteran and his representative at the May 2021 Board Hearing, the record does not contain competent, probative evidence that the Veteran's current bilateral hearing loss is the result of aggravation of his pre-existing hearing loss disability. Subsequent to that hearing, neither the Veteran nor his representatives have submitted any additional evidence or argument tending to support the proposition that his pre-existing hearing loss disability was aggravated by any in-service event, disease, or injury. To reiterate, the Veteran bears the burden of establishing aggravation in this case. Id.; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.304(b). He has not met that burden. The greater weight of the evidence is against the Veteran's claim. Entitlement to service connection for bilateral hearing loss is denied. 3. Entitlement to service connection for lacerations of the lower back The Veteran contends that he sustained lacerations to his lower back while performing physical training (e.g., sit-ups) and carrying heavy weights (e.g., a rucksack) during his active service, though he admitted never getting treatment during his active service for any back symptoms. See, e.g., May 2021 Board Hearing Tr. at 6. 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 degenerative arthritis and degenerative disc disease of the lumbar spine, as well as a prior lumbosacral strain and scars related to post-service back surgery, (collectively, "current back disability"), the evidence fails to establish, to the standard of at least as likely as not, an in-service injury, event, disease. In making this finding, the Board relies on the lack of documentation of any such event, injury, or disease during the Veteran's active service, the Veteran's own representation at discharge that there had been "no changes in medical status" during his period of active service, the Veteran's testimony regarding the nature of his alleged in-service injuries (e.g., cuts and bruises to the back while laying on bricks and rocks). The Veteran's alleged in-service injuries are not documented and his assertion that he had such injuries resulting in ongoing symptoms and disability conflicts with his statements at discharge. In addition, the alleged injuries occurred in peacetime, during routine training/duties, so there are no combat or other presumptions which would lower the burden of production or persuasion on the issue. The Board is left with the Veteran's own testimony, which is not supported by any contemporaneous documentation, although the Veteran alleges that he received treatment during service for the alleged injuries. The Board finds the Veteran's testimony is not credible given that there is no documentation despite other conditions of similar severity being documented in his service medical records, his testimony conflicts with his contemporaneous statement that there was no change in his medical status, and the indications in the record which are discussed above that indicate he was not a reliable historian at his Board hearing, such as when he denied facts which contemporaneous documentation establish did occur (e.g., service records document that he was given ear protection but the Veteran denied at his hearing that he was given ear protection). In addition, he alleged cuts, abrasions, and lacerations which resulted in scarring which is still present, but the August 2021 VA examination with respect to scars only found scars that were directly related to post-service back surgery. This discrepancy between objective medical evaluations and the Veteran's own testimony further supports finding he is not a reliable historian. The Veteran's claim fails because the greater weight of the evidence is against finding that he sustained any event, injury, or disease during his active service that may be associated with his current back disability. In addition and in the alternative, the claim also fails because the evidence is against finding any possible association between the alleged in-service injuries and the current back disability. Even assuming the Veteran's testimony regarding lacerations and bruising after performing various physical tasks on rocks and bricks is sufficient to place that particular issue in equipoise, the preponderance of the evidence weighs against finding that the Veteran's current back disability began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with any of his current back disabilities until, at the earliest, 1990, many years after his separation from service. Moreover, the contemporaneous documentation of those injuries indicates acute onset of symptoms within days of the post-service treatment. See February 1990 Medical Certificate (documenting complaints of low back pain after "helping a friend lift a dresser"; diagnosing "lumbosacral strain"); February 1990 VA Progress Note ("Low back pain after lifting object x 1 day"; documenting lumbar spine x-ray); March 1998 VA Imaging Report ("normal lumbar spine"; "Clinical History: Back injury 2 weeks ago now with continued pain."). Moreover, these records include x-rays which weigh against finding that the Veteran had arthritis prior to March 1998 as those x-rays showed a normal back. Thus, there can be no chronicity of symptomatology of arthritis from service to the present, because there was no arthritis of the back prior to March 1998 (and it was not documented until over a decade after that). While the Veteran is competent to report having experienced symptoms of back pain intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of any of his current back disabilities. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, interpretation of complicated diagnostic medical testing, and the pathology of nerve and musculoskeletal disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the August 2021 VA examiner noted that the Veteran's scars were solely related to the post-service back surgery, the lumbosacral strain began in 1996, the degenerative disc disease was first diagnosed in 2015, and degenerative arthritis was first diagnosed in August 2021. The VA examiner's report documents that, not only were the degenerative arthritis and degenerative disc disease not diagnosed until 2021 and 2015, respectively, there was prior imaging showing that these conditions did not exist prior to 2015. See August 2021 VA Examination (comparing 2014 imaging results to later imaging results); see also March 1998 VA Imaging Report ("normal lumbar spine"). Not only does the available medical evidence fail to contain any indication of a possible association between the alleged in-service events and the current disabilities, the normal post-service imaging results until 2014 and records noting several acute, post-service injuries, as well as the August 2021 VA examiner's opinion that the 1996 (according to the Veteran) surgery was an acute event with no apparent residuals, all provide some probative evidence against finding any possible association. The Board finds that the evidence is against finding that there is any possible etiological relationship between the alleged in-service events and the current disability. Therefore, the claim also fails on the nexus element of the Veteran's claim. The Board notes in making this finding, that the Veteran explicitly denied that he was seeking service connection for "the back condition itself", but instead, as the Board interprets his testimony, intended to seek compensation for the residuals of the in-service lacerations which he believed was scarring (whether internal or external). See May 2021 Board Hearing Tr. at 12. The Board has nonetheless considered all of the Veteran's current diagnosed disabilities, because some of the symptoms identified by the Veteran may be attributable to the diagnosed conditions (particularly as the Veteran has no external scarring other than the post-service surgical scars and has not been diagnosed with any nerve damage of the lower back). See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). In short, the greater weight of the evidence is against finding that the Veteran's current back disability is etiologically related to any in-service events, injury, or disease. To be clear, the evidence is against finding that the Veteran suffered an in-service event, injury, or disease and also is against finding that, assuming the claimed in-service events occurred, there is any nexus between those events and the current back disability. For both these reasons, the Veteran's claim fails. Entitlement to service connection for lacerations of the lower back is denied. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.