Citation Nr: 21012456 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-45 053 DATE: March 4, 2021 ORDER 1. Entitlement to a compensable rating for bilateral hearing loss is denied. 2. Entitlement to service connection for a neck disability is denied. 3. Entitlement to service connection for a low back disability is denied. 4. Entitlement to service connection for chronic migraines is denied. FINDINGS OF FACT 1. The Veteran’s hearing acuity is not shown to at any time have been worse than Level II in the left ear, and level IV in the right. 2. A neck disability, a low back disability, and chronic migraines were not manifested during service; cervical or thoracolumbar spine arthritis was not manifested within a year after the Veteran’s separation from service; and any current neck or back disability, or chronic migraines are not shown to be etiologically related to his active duty service. CONCLUSIONS OF LAW 1. A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code (Code) 6100. 2. Service connection for a neck disability is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 3. Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 4. Service connection for chronic migraines is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1965 to February 1969. These matters are before the Board on appeal from August 2011 and April 2013 Department of Veterans Affairs (VA) rating decisions. In September 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In April 2019, the matters were remanded for additional development. [The April 2019 Board remand also addressed a claim of service connection for posttraumatic stress disorder (PTSD). An August 2020 rating decision granted the Veteran service connection for PTSD, resolving that matter.] 1. Entitlement to a compensable rating for bilateral hearing loss is denied. On October 2010 VA audiological examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 20 30 50 50 LEFT 20 25 55 55 The puretone threshold averages were 37.5 decibels in the right ear and 38.75 decibels in the left. Speech audiometry revealed 100 percent speech recognition ability in the right ear and 96 percent in the left ear. On September 2012 VA audiological examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 20 25 50 55 LEFT 30 30 55 50 The puretone threshold averages were 37.5 decibels in the right ear and 41.25 decibels in the left. Speech audiometry revealed 88 percent speech recognition ability in the right ear and 72 percent in the left ear. On December 2019 VA examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 20 35 70 65 LEFT 15 45 65 70 The puretone threshold averages were 47.5 decibels in the right ear and 48.75 decibels in the left. Speech audiometry revealed 84 percent speech recognition ability in the right ear and 86 percent in the left ear. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability; separate diagnostic codes contain the criteria for rating the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation over the life span of the claim, warranting the assignment of “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2009). Ratings for hearing loss disability are determined by considering the puretone threshold average and speech discrimination percentage scores. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are assigned by combining the levels of hearing loss found in each ear. 38 C.F.R. § 4.85(e), Table VII. With an exceptional pattern of hearing impairment, the level of hearing acuity may be derived under either Table VI or Table Via (based on puretone thresholds, alone), whichever is more favorable. 38 C.F.R. § 4.86(a). One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more; another occurs when the puretone threshold at 1000 hertz is 30 decibels or less and the puretone threshold at 2000 hertz is 70 decibels or more. Applying the results of the October 2010 VA examination to Table VI showed that the Veteran had Level I hearing acuity in each ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIa is not for application. Applying the results of the September 2012 VA examination to Table VI showed that the Veteran had Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIa is not for application. Applying the results of the December 2019 VA examination to Table VI showed that the Veteran had Level II hearing acuity in each ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIa is not for application. The Board finds no reason to question the Veteran has functional impairment due to hearing loss he alleges: difficulty hearing at work (in 2010), having to wear hearing aids (in 2012); and difficulty communicating where there is background noise (in 2019. However, such impairment is contemplated by the 0 percent rating assigned. The Board also notes the Veteran’s hearing testimony indicating that he has observed a worsening of his hearing acuity. hof his hearing acuity. The record shows that indeed his hearing has worsened since he was examined in 2010. However, the reduced hearing acuity has not been shown (by officially mandated audiometry) to have risen yet to a level warranting a compensable rating. Consequently, a compensable rating for the bilateral hearing loss is not warranted. The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases listed in 38 C.F.R. § 3.309(a) (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 2., 3., 4. Entitlement to service connection for a neck disability, a low back disability, and chronic migraines is denied. The Veteran contends that he was injured in service in a collision at sea while serving on the U.S.S. Mount Katmai in October 1967. He states that he fell down a ladder well to a lower deck and landed on his head, face, and shoulder, and he woke up in sick bay where he was given pain medication that he took for the remainder of his service. He contends that he has experienced back and neck pain and chronic headaches since then. He submitted ship command histories confirming that a collision occurred between the U.S.S. Coral Sea and the U.S.S. Mount Katmai in October 1967. The documents reflect that both ships sustained damage but there were no casualties or injuries on either ship, and that both ships were able to continue their missions. The Veteran’s STRs are silent for complaints, findings, treatment, or diagnosis of a back, neck, or headache disability. On February 1969 service separation examination, his head, neck, and spine were normal on clinical evaluation. The postservice medical evidence is silent for complaints, findings, treatment, or diagnosis of back pain until June 2010, when the Veteran submitted a medical expenses report for prescriptions from a private orthopedic surgeon from November and December 2002. In a June 2010 statement, that provider opined, “My orthopedic surgery opinion is that the fall in 1967 while in the service may have contributed to his lower back condition.” In June 2010, the Veteran submitted a list of services he was provided by a private chiropractor from July 1991 to April 1992. In a June 2010 statement, that provider opined, “I agree the fall may have contributed to his history of back problems.” The Veteran submitted a June 2010 buddy statement from a fellow service member who stated that he witnessed the Veteran’s alleged fall injury in October 1967. VA treatment records from October 2010 show complaints of, and treatment for, low back pain. May 2013 VA treatment records show complaints of, and treatment for, migraine headaches. The medical evidence notes that of record notes the Veteran had a worker’s compensation-related injury that required two surgeries for his lower back in the 1990s; he asserts that prior to that injury he was involved in an accident in service and developed chronic neck and back pain from such injury. In October 2018 correspondence, the private chiropractor who submitted the June 2010 statement noted that the Veteran was first seen at his office in February 1987 with complaints related to his neck, back, shoulder, and a history of migraine headaches. The provider stated that the Veteran’s “case history included an injury while serving in the Military”, and opined that he suffered a concussion when thrown approximately ten feet onto a lower deck. The provider opined that the Veteran’s chronic symptom complex is related to his original injury in service. A November 2019 response to a records request, that provider provided only a duplicate of his October 2018 correspondence and treatment records from October 2018. The claims file includes November 2019 reports of contact indicating that other private providers cited by the Veteran do not have records of treatment for him. A neck disability, back disability, and headache disability were not manifested in service and were not clinically noted for many years postservice. Accordingly, service connection for a neck disability, back disability, and headache disability on the basis that they became manifest in service and persisted, or on a presumptive basis for the neck or back disability (as arthritis, a chronic disease under 38 U.S.C. § 1112) is not warranted. The Veteran is competent to report that he suffered a fall in service. But whether any such fall (with no related complaints noted contemporaneously) resulted in the current claimed disabilities is a medical question. While the Veteran may substantiate the claims by competent medical evidence that his current neck, back, or headache disabilities are etiologically related to his service, he has presented no such evidence. There is no credible evidence of a related disease or injury (to the head, neck, or back) in service (and strong evidence of postservice etiological factors for the current claimed disabilities, i.e., a work injury and an accident), and therefore no possibility of a probative positive nexus opinion in the matters. Considering the foregoing, the Board finds that the preponderance of the evidence is against these claims. Accordingly, the appeal in the matters must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.