Citation Nr: 21021136 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-57 205 DATE: April 9, 2021 ORDER An initial compensable disability rating for bilateral hearing loss is denied. Service connection for a lumbar disorder, to include as secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s bilateral hearing loss has been manifested by no worse than Level II hearing impairment bilaterally. 2. The Veteran's lumbar spine disability was not shown in service or for many years thereafter; it is not otherwise related to active duty service; it is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to service connection for a lumbar disorder, to include as secondary to a service-connected bilateral knee disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1956 to March 1960 and from July 1964 to November 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2015 and November 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Acting Veterans’ Law Judge in February 2020 via videoconference. A transcript of that hearing is of record. The Veteran’s lumbar disorder has been characterized as degenerative disc disease, gait disturbance, a strain, intervertebral disc syndrome, etc. throughout the period on appeal. The Board acknowledges that the Court has held that when a veteran claims service connection, he or she is not claiming service connection for a specific diagnosis but for his or her symptoms regardless of the diagnosis, and the claim encompasses the underlying condition, regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). As such, the Veteran’s claim will be characterized as a lumbar disorder and includes all possible diagnoses. 1. Entitlement to an increased rating for bilateral hearing loss The Veteran asserts that he is entitled to an initial compensable rating for his service-connected bilateral hearing loss. Disability considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran has been assigned a noncompensable rating for his bilateral hearing loss under 38 C.F.R. § 4.85, Diagnostic Code 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. Additionally, the schedule takes into account the effect of the Veteran’s hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz ) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). After a review of the evidence of record, the Board finds that an initial compensable disability rating for bilateral hearing loss is not warranted. Specifically, the VA examination from May 2015, reported that the Veteran had sensorineural hearing loss in both ears. The Veteran specifically detailed that he has difficulty hearing others and the television. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 35 45 45 60 46.25 LEFT 35 35 45 55 42.5 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 88 percent left ear. Applying these values to Table VI, the Veteran exhibits Level II hearing loss bilaterally. When applying these levels to Table VII, a noncompensable rating is for application. Therefore, based on this evidence, there is no clinical evidence to support the Veteran’s argument that he was entitled to an initial compensable disability rating in May 2015. Similarly, the VA examination from October 2020, reported that the Veteran had sensorineural hearing loss in both ears. The Veteran stated that he could not understand when others are talking to him or hear the television. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 35 45 55 55 46.25 LEFT 35 35 45 55 42.5 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. Applying these values to Table VI, the Veteran exhibits Level I hearing loss bilaterally. When applying these levels to Table VII, a noncompensable rating is for application. Additionally, the Board acknowledges the July 2018 private audiogram report included in the Veteran’s medical records. However, this examination could not be considered for VA compensation rating purposes as it is not clear that the examiner used the Maryland CNC speech discrimination test. While the Board cannot use this test to evaluate the Veteran’s hearing loss under the statutory rating criteria, it notes that that audiogram report showed word recognition scores of 100 bilaterally, with average puretone thresholds of 74 in the right ear and 80 in the left ear, which also would only support a noncompensable Level II hearing loss bilaterally. In sum, based on the evidence of record, the clinical evidence does not support an initial compensable disability rating as of August 2020. Accordingly, an initial compensable disability rating is not warranted on a schedular basis throughout the period on appeal. In considering the appropriate disability rating, the Board has also considered the Veteran’s statements that his hearing loss was worse than the ratings he received. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his hearing loss according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). 2. Entitlement to service connection for a lumbar disorder The Veteran asserts that his lumbar disorder is related to service to include as secondary to his already service-connected bilateral knee disability. Based, on the evidence of record, service connection for a lumbar disorder is not warranted. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. First, the Veteran’s service treatment records do not reflect complaints of, treatment for or diagnosis of a lumbar disorder during active service with the exception of a single complaint of back pain in July 1965. Additionally, his June 1966 periodic examination indicated no signs of a lumbar disorder. Moreover, the post-service evidence does not reflect symptoms of these disorders until many years after separation. Specifically, the medical evidence reports that the Veteran was not treated for issues with his spine until approximately 2015. As part of this claim, the Veteran asserts that he has had symptoms of a lumbar disorder since active duty service. However, while the Veteran is not competent to diagnose a lumbar disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus require a determination that is “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology such as pain and stiffness, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not credible for purposes of establishing service connection in this matter. In this matter, there is a large gap in treatment since separation from service, nor was there any evidence of low back symptoms or diagnoses during active service. These factors weigh against the credibility of the Veteran’s lay assertions. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider when assessing the credibility of lay evidence). Therefore, continuity is not established based on the evidence of record. Regardless of the credibility of the lay evidence, in August 2020, the RO sought a medical opinion on the matter. The examiner reviewed the entire record and stated that the Veteran’s lumbar disorder was less likely than not related to active duty service on a direct basis. The examiner provided the rationale that the Veteran was diagnosed with a lumbosacral sprain/strain, intervertebral disc syndrome (IVDS), and sciatica. IVDS and sciatica are not associated with lumbosacral sprain/strain and are typically caused by degenerative changes involving the lumbar spine. He noted that a review of the Veteran’s service treatment records was unremarkable for objective evidence of lumbar spine degenerative disc disease and spondylosis. The examiner further noted that the current medical imaging decades after service is consistent with wear that naturally occurs with aging including his duties as an automobile mechanic. In September 2020, a second opinion was obtained which stated that it was less likely than not that the Veteran’s spine disability was caused by any incident of active service. In support of this, the examiner noted a general lack of treatment for back pain between 1965 and 2015. The Board finds these opinions persuasive. They were given by a medical specialist in contemplation of the complete medical record, to include a reasoned application of the facts in evidence to known medical principles. The Board has searched the record and not found any evidence or medical opinion which would contradict these opinions. Service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s asserted disability to active duty service. Turning to the question of secondary service connection, the Veteran has also asserted that his low back condition is caused or aggravated by his service-connected bilateral knee condition. The Board finds this theory similarly unpersuasive. In August 2020, a VA examiner reviewed the entire record and concluded that it was less likely than not that the knee condition caused or aggravated the Veteran’s low back condition. In support of this, the examiner discussed the Veteran’s various diagnoses, to include a complete review of the Veteran’s diagnostic testing which showed degenerative disc disease and spondylosis with degenerative facet changes, possibly resulting in intervertebral disc syndrome (IVDS) and sciatica. The condition first appeared many years after separation from active service, and are conditions which occur naturally with aging. Although he is service connected for a bilateral knee arthritis, such arthritis does not have the capacity to cause degenerative arthritis in a separate joint, such as the spine. In both locations, the degenerative changes occur as a result of wear with aging. Based on the natural history of degenerative changes, the currently diagnosed low back disability was less likely than not caused by or proximately due to, or aggravated beyond natural progression by the knee disability. In September 2020, a second VA examiner opined to the opposite, stating that his knee condition had altered his mechanical gait and put an increased amount of stress on his spine, thus it was at least as likely as not that the Veteran’s IVDS was the result of his knee disability. It is noted that the September 2020 examiner explicitly opined against aggravation of the back by the knees, noting that this was impossible as it had already caused the condition. Because two conflicting opinions existed regarding direct causation by the knee disability, VA sought a third opinion in November 2020. The examiner reviewed the complete file and opined that the Veteran’s lumbar disorder is less likely than not proximately due to or the result of the Veteran’s service-connected condition. He provided as the rationale that the Veteran suffers from IVDS and sciatica associated that are typically caused by degenerative changes involving the lumbar spine, which is not something that would not have a significant impact on an altered mechanical gait. He noted that the degenerative changes on the spine would have occurred naturally as the Veteran aged regardless of his gait. Weighing this evidence, the Board finds the August and November 2020 opinions more probative of the question in this matter. Both opinions included detailed and well-reasoned discussions, considered all possibly diagnoses, and applied the facts in this case to known medical principles. Therefore, the Board finds that the evidence does not support either aggravation or causation by the Veteran’s knee disabilities. In arriving at this conclusion, the Board acknowledges the positive September 2020 VA examiner’s opinion that opined that the Veteran’s lumbar disorder is at least as likely as not proximately due to or the result of the Veteran’s service-connected condition. He provided as the rationale that the Veteran’s bilateral knee condition has altered his mechanical gait and put more stress on his spine. However, the Board finds the November 2020 VA examiner’s opinion more probative as it addresses that theory and contains a more thorough rationale including an explanation of the Veteran’s precise lumbar impairments. In sum, the Board finds that the medical evidence of record does not support a medical nexus between the Veteran’s active service, or his service-connected knee disability. In arriving at this conclusion, the Board has also considered possible statements made by the Veteran relating his lumbar disorders to his active service or to his knees. while lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his low back disability, especially in light of the multiple medical opinions to the contrary and the fact that the evidence fails to demonstrate the onset of arthritis in service. See id. Finally, to the extent that the Veteran’s low back condition falls under the diagnostic umbrella of “arthritis,” as noted above, the Veteran’s condition was not diagnosed until nearly 50 years after separation from service. There is no evidence of a diagnosis of arthritis during service or within one year of separation from service, and there is no competent and credible evidence of continuity of symptomatology from the time of service. The most probative medical opinions of record have found the Veteran’s condition to be degenerative in nature, and first occurring many years after service. Therefore, service connection on a presumptive basis is not established. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, 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.