Citation Nr: 21007732 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-47 217 DATE: February 10, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection bilateral lower extremity neuropathy is denied. Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to an initial compensable rating for a left ear hearing loss disability is denied. FINDINGS OF FACT 1. The Veteran’s low back disability did not manifest during active service; arthritis did not manifest within one year of discharge from active service; and there is no indication that the disability is causally related to active service. 2. The Veteran’s bilateral lower extremity neuropathy did not manifest during active service and there is no indication that the disability is causally related to active service or a service-connected disability. 3. The Veteran does not have a right ear hearing loss disability as defined in Department of Veterans Affairs (VA) law and regulations. 4. The Veteran has demonstrated, at worst, Level IV hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, (2019). 2. The criteria for service connection for bilateral lower extremity neuropathy are not met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 3. The criteria for service connection for a right ear hearing loss disability are not met. 38 U.S.C. § 1110 (2018); 38 C.F.R. §§ 3.303, 3.385 (2019). 4. The criteria for an initial compensable rating for a left ear hearing loss disability are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from January 1962 to May 1966. This case initially came before the Board of Veterans’ Appeals (Board) on appeal of a May 2018 rating decision issued by a Regional Office (RO) of VA. In April 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2019, the Board remanded the claims for additional development. The case has since been returned to the Board for further appellate review. The Veteran also appealed the issue of entitlement to service connection for a psychiatric disability. In an October 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for adjustment disorder with mixed anxiety and depressed mood, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, that matter is no longer in appellate status. Service Connection – Back and Lower Extremity Neuropathy The Veteran maintains that his current back disability and bilateral lower extremity neuropathy are related to injuries he sustained during active service. He states that he has had back problems and numbness in his legs since boot camp and that he reinjured his back during civilian life in 1970. During the April 2019 Board hearing he reported that although he had continued symptoms during service, he only sought treatment twice because he did not have the time to spend at the clinic while fulfilling his duties. A February 1962 service treatment record noted that the Veteran complained of back trouble and the assessment was lumbar strain. He was given Zactirin for pain. Later that month, he was treated for a sore throat and there was no mention of any back pain or neuropathy. In April 1964, he was treated for coughing and chest pain. There was no mention of any back pain or neuropathy. In April 1965, he reported that he sustained a back injury while fueling an aircraft three days prior. Deep tendon reflexes were active. Straight leg raising test on the right was to 90 degrees and to 70 degrees on the left. There was no sensory loss. The impression was low back strain. In July 1965, he was seen for pain in his left lower quadrant. There was no mention of any back pain or neuropathy. In August 1965, he was treated for headache and vertigo after being hit in the head with a softball. There was no mention of any back pain or neuropathy. Later that month he was treated for a burning sensation during urination. There was no mention of any back pain or neuropathy. In November 1965, he complained of a cyst behind his left ear. There was no mention of any back pain or neuropathy. At his April 1966 separation examination, his spine and neurologic evaluation were normal. Post service, an October 1980 private treatment record indicated that the Veteran complained of back and left hip pain after doing some gardening work. He reported that he had a lifting accident 10 years previously and underwent disc removal. The diagnosis was status post laminectomy with acute left sciatica. Later treatment records in the 1990s noted complaints of numbness and tingling in his lower extremities. In April 2005, he had an acute exacerbation of low back pain. X-rays showed degenerative disc disease at the L5-S1 level. A January 2005 magnetic resonance imaging (MRI) showed multilevel discal pathology, including disc bulges and protrusions/herniations from L2-L3 to L5-S1. It was noted that he had multiple herniated discs of the low back. During an April 2008 VA examination, the Veteran reported that he sustained a back injury during service while fueling an aircraft. He stated that his legs went numb in 1962 and 1965 and he was given pain medication. He indicated that after service, he had back pain in 1968, which became severe, and that he had surgery for a ruptured disc in 1970. The examiner reviewed the claims file and noted diagnoses of status post laminectomy, herniated nucleus pulposus L3-L4, L4-L5, and L5-S1, and spondylosis. The examiner opined that the Veteran’s current back disability was not caused by or a result of active service, noting that there were two notes of muscle strain during service with no evidence of any frank injury or X-rays showing fractures or trauma to the thoracolumbar spine. The examiner also noted that the Veteran’s April 1966 separation examination showed a normal spine with no summary of defects in the examination. Furthermore, the examiner noted records indicated that he had a disc removal secondary to a lifting accident post service. In August 2017, a CT scan of the Veteran’s lumbar spine revealed extensive degenerative joint disease lumbar spine spondylosis with neural foraminal stenosis and central canal narrowing predominantly involving the L1-L2 through L4-L5 levels. The report of an October 2020 VA examination noted that the Veteran reported that he was injured while performing his job duties and noted a diagnosis of spinal fusion. The examiner opined that the claimed condition was less likely than not incurred in or caused by service. The examiner noted that during service, lumbar pain was acute only, that there was no evidence of chronicity of care, and that symptoms were subjective only. In a November 2020 addendum opinion, the examiner noted that it was possible that the Veteran’s duties, which included pushing and pulling aircraft with his hands and lifting at least 30 pounds, could have caused his back disability and subsequent numbness in his legs and feet; however, the examiner opined that it was less likely in this case, noting his injury post discharge. In this case, the Board finds that the evidence weighs against the claims. The evidence does not indicate that the Veteran’s low back disability and bilateral lower extremity neuropathy manifested during active service. Although he was treated for a low back strain in 1962 and 1965, there were no follow-up records of treatment and the April 1966 separation examination indicated that his spine was normal, which suggests the injuries were acute and resolved without residuals. Although the Veteran indicated that he continued to experience back problems and numbness in his lower extremities since boot camp and that he did not go to sick call because he did not have time, his service treatment records indicated that he went to sick call for several other problems and that there was no mention of any continued back pain or numbness in his lower extremities. The first complaints and objective evidence of the claimed disabilities occurred in 1980, over 14 years later, and those records indicated that he underwent surgery to repair a disc following a lifting injury in 1970. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the October 2020 VA examiner’s opinions weigh against the claims. As noted above, the examiner indicated that it was less likely than not that the Veteran’s disabilities were incurred in or caused by service. The examiner considered and addressed the relevant evidence of record, the Veteran’s contentions, and provided rationale for his opinion. For those reasons, the Board finds the VA examiner’s opinion significantly probative. Furthermore, there are no medical opinions to the contrary. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also considered the lay evidence. The Veteran is competent to describe what he has personally observed or experienced; however, to the extent his reports conflict with the contemporaneous medical evidence, the Board does not find his statements credible. Furthermore, the ultimate question of etiology in this case extends beyond the immediately observable cause-and-effect relationship and is beyond the competence of lay witnesses. For these reasons, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for a low back disability and bilateral lower extremity neuropathy is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection – Right Ear Hearing Loss The Veteran maintains that he has a right ear hearing loss disability related to in-service noise exposure. There are specific requirements regarding what constitutes a hearing loss disability under VA law. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. During an April 2018 VA audiology evaluation, audiometric testing results were as follows: 500 1000 2000 3000 4000 Right 5 20 20 20 30 Speech recognition ability was measured at 100 percent in the right ear. The VA examiner indicated that the Veteran had sensorineural hearing loss in the frequency range of 6000 Hz or higher. During a September 2020 VA audiology evaluation, audiometric testing results were as follows: 500 1000 2000 3000 4000 Right 15 25 25 30 35 Speech recognition ability was measured at 100 percent in the right ear. The VA examiner indicated that the Veteran had sensorineural hearing loss in the frequency range of 500-4000 Hz. In this case, although the VA examiner indicated that the Veteran had right ear hearing loss, the above-cited testing results do not establish a current right ear hearing loss disability as defined by 38 C.F.R. § 3.385. The Board has reviewed the claims file; however, the Veteran has not presented or identified existing audiometric testing results that meet the requirements of that regulation for hearing loss. In December 2020, the Veteran requested another hearing examination, noting that he disagreed with the examiner’s rationale regarding the etiology of his right ear hearing loss. The Board notes, however, that the evidence does not indicate that he has a current right ear hearing disability as defined by VA. He has not argued and there is otherwise no evidence to suggest that the VA examination was inadequate in terms of establishing a current disability. Therefore, the Board finds that remand for an additional VA examination is not necessary. The Veteran does not have a right ear hearing loss disability for VA purposes. The test results are controlling and more probative than the lay evidence. Therefore, the claim for service connection for a bilateral hearing loss disability is denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49.   Increased Rating – Left Ear Hearing Loss In a May 2018 rating decision, the RO granted service connection and assigned an initial noncompensable rating for a left ear hearing loss disability. The Veteran appealed and is seeking a compensable rating. If impaired hearing is service-connected in only one ear, the percentage evaluation is found from Table VII by assigning the nonservice-connected ear Level I hearing acuity. 38 C.F.R. § 4.85(f). During an April 2018 VA audiology evaluation, audiometric testing results were as follows: 1000 2000 3000 4000 Avg. Hz. Left 25 25 35 40 31 Speech recognition ability was measured at 68 percent in the left ear. Using Table VI, the results of the April 2018 VA audiology evaluation equate to Level IV in the left ear. Using Table VII, those results warrant a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2019). During a September 2020 VA audiology evaluation, audiometric testing results were as follows: 1000 2000 3000 4000 Avg. Hz. Left 25 25 35 40 31 Speech recognition ability was measured at 96 percent in the left ear. Using Table VI, the results of the September 2020 VA audiology evaluation equate to Level I in the left ear. Using Table VII, those results warrant a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2019). The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, the audiological report does not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in left ear is 55 decibels or more or that pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in the left ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86 (a), (b). The Board has carefully reviewed the remaining record during the appeal period but finds no other probative evidence of record showing that the Veteran’s left ear hearing loss disability is more severe for compensation purposes than demonstrated on the audiological evaluation discussed above. In addition, there is no basis for the assignment of staged ratings, as the criteria for a higher rating have not been met during the relevant time period. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, the Board has considered the evidence of record showing that the Veteran has difficulty understanding conversation and knowing where sounds are coming from. Although the Board finds his statements to be credible, it finds that those factors do not provide sufficient evidence on which to award a higher rating for left ear hearing loss. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to no greater than a noncompensable percent disability rating. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a compensable rating for left ear hearing loss disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert, 1 Vet. App. at 49. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mishalanie, 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.