Citation Nr: 21022856 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-03 759A DATE: April 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss for the purpose of retroactive benefits on the basis of substitution is granted. Entitlement to service connection for a lumbar spine disability for the purpose of retroactive benefits on the basis of substitution is denied. FINDINGS OF FACT 1. Service treatment records confirm the Veteran had a bilateral hearing loss disability, as defined by VA regulation, prior to his separation from active service. 2. The preponderance of evidence is against a finding that the Veteran’s lumbar spine disability was the result of an in-service disease or injury, as well as a finding that arthritis manifest in active service or to a compensable degree within one year of the Veteran’s separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1947 to June 1979. He died in September 2013. The Appellant is his surviving spouse. She has been substituted for the Veteran for the purpose of processing his pending service connection claims to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Appellant appeared at hearing before the undersigned in December 2015. A transcript of the hearing is of record. In March 2016, the Board remanded the issues on appeal so the Agency of Original Jurisdiction (AOJ) could render an initial substitution decision. As previously noted, the Appellant has now been substituted for the Veteran. The issues on appeal were most recently before the Board in March 2019, when they were remanded for further development. Specifically, the Board directed the AOJ to obtain any outstanding service treatment records that may be available for the Veteran; to make reasonable efforts to assist the Appellant in obtaining any outstanding private treatment records that may be available for the Veteran; and to obtain a nexus opinion regarding the issue of service connection for a lumbar spine disability. The Board notes it also directed the AOJ to obtain a nexus opinion regarding the issue of service connection for bilateral hearing loss if newly obtained records included audiometric test results showing a bilateral hearing loss disability within the meaning for 38 C.F.R. § 3.385. The record reflects the Veteran’s full service treatment records were associated with the claims file in May 2019. The AOJ has made reasonable efforts to assist the Appellant in obtaining private treatment records from the five providers for which she provided a release. The AOJ obtained records from four of the providers, but the office of V.H., M.D., did not respond to two development letters sent to the address provided by the Appellant. See 38 C.F.R. § 3.159(c)(1). The AOJ obtained an adequate nexus opinion regarding the issue of service connection for a lumbar spine disability in January 2021. Although the AOJ did not obtain a nexus opinion regarding the issue of service connection for bilateral hearing loss despite service treatment records showing a bilateral hearing loss disability within the meaning for 38 C.F.R. § 3.385, the Board finds service connection for bilateral hearing loss is warranted pursuant to the chronic disease presumptions, as will be discussed in more detail below; therefore, no prejudice will result to the Appellant from the AOJ’s failure to obtain a nexus opinion regarding bilateral hearing loss. Thus, the Board finds there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement for a chronic disease enumerated in 38 C.F.R. § 3.309 can be established on a presumptive basis if chronicity is established in service or the condition manifest to a compensable degree within one year of separation from service. 38 C.F.R. § 3.303(b); 38 C.F.R. § 3.307(a)(3). The nexus requirement can also be established by a continuity of symptomatology when a condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1338-1340 (Fed. Cir. 2013). A condition is considered to be “noted during service” when there is symptoms indicative of, but not dispositive of, a chronic disease. Id. at 1339. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss For the purposes of applying the laws administered by VA, hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. Here, the record establishes the Veteran had a bilateral hearing loss disability, as defined by VA regulation, prior to his separation from active service. Service treatment records associated with the claims file in May 2019 include the Veteran’s May 1979 retirement examination report. At that time, the Veteran’s auditory thresholds were 40 decibels or greater at 4000 Hz bilaterally. The results noted in the Veteran’s retirement examination report are consistent with previous in-service testing, which also shows the Veteran’s auditory thresholds were 40 decibels or greater at 4000 Hz bilaterally. The Board further notes there are service treatment records showing a diagnosis of high frequency bilateral hearing loss dating back as early as December 1965. Bilateral hearing loss is an organic disease of the nervous system and thus constitutes a chronic disease within 38 C.F.R. § 3.309(a). See VA Under Secretary for Health Memorandum (Oct. 1995); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (stating “the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an ‘[o]rganic disease[ ] of the nervous system’”). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b); see also Walker, 708 F.3d at 1338-40. Although the Veteran died before audiometric testing could be conducted in conjunction with his January 2013 service connection claim, the Board finds reasonable doubt must be resolved in the Appellant’s favor regarding the material issue of a current disability as there was clearly a chronic bilateral hearing loss disability shown in service that was highly unlikely to resolve after the Veteran’s separation from active service. Thus, the Board finds service connection for bilateral hearing loss is warranted in accordance with the presumptive provisions for chronic diseases. 2. Entitlement to service connection for a lumbar spine disability The record establishes the Veteran had thoracolumbar spondylosis/degenerative changes; therefore, the current disability requirement for service connection has been met. There is evidence the Veteran was treated for low back pain in service. The Appellant has asserted the Veteran’s duties on an aircraft carrier flight deck holding landing signal flags and experiencing back muscle strains due to not having padded seats contributed to the development of a chronic lumbar spine disability. The only issue that remains is whether there is a nexus between the Veteran’s current disability and the in-service injury. As previously noted, the Board directed the AOJ to obtain a nexus opinion regarding the issue of service connection for a lumbar spine disability, which the AOJ obtained in January 2021. The January 2021 VA examiner concluded the Veteran’s lumbar spine disability, to include thoracolumbar spondylosis and other degenerative changes, was less likely than not the result of an in-service disease or injury, to include his flight deck duties and the manifestations of back pain noted in service treatment records. It is clear the January 2021 VA examiner considered an accurate factual history of the claimed disability because he included a detailed recitation of the factual circumstances present in this case in the examination report. The January 2021 VA examiner also provided a cogent, well-reasoned rationale to support his conclusion that the Veteran’s lumbar spine disability was not the result of service. The January 2021 VA examiner noted his review of the Veteran’s imaging studies shows the Veteran’s spondylosis/degenerative changes were consistent with age-related changes and not traumatic injury. The January 2021 VA examiner acknowledged the lay written statements of record and explained activities such as standing for long periods on an aircraft carrier flight deck holding landing signal flags and experiencing back muscle strains due to not having padded seats result in temporary discomfort but do not necessarily cause thoracolumbar pathology like the Veteran’s because strains do not cause arthritis in joints. The January 2021 VA examiner further explained that because there was no evidence of disruption to the articular surface of the joint at the time of an in-service injury the Veteran’s degenerative joint disease/ spondylosis was most likely a natural aging process given the initial diagnosis in 2008, which is almost 30 years after the Veteran’s separation from service, with genetics also factoring in to some degree. The Board acknowledges the Veteran’s lumbar spine disability is a form of arthritis and therefore constitutes a chronic disease within the meaning of 38 C.F.R. § 3.309; however, as previously noted, arthritis was not confirmed by x-ray until 2008, so chronicity was not established in service or to a compensable degree within one year of the Veteran’s separation from service in June 1979. To the extent a back condition was noted in service and the record suggests the Veteran may have experienced continuous symptoms since service, the Board finds the evidence relating to a continuity of symptomatology is outweighed by the probative value of the January 2021 VA examiner’s opinion, which includes an explicit conclusion that imaging studies reveal the Veteran’s degenerative changes are consistent with the natural aging process. The Board does not doubt the Appellant sincerely believes that the Veteran’s military service played some role in the development of his lumbar spine disability given the longevity and physically demanding nature of his service in combination with the level of symptomatology he endured prior to his death, but neither the Veteran nor the Appellant have the requisite training or expertise to address a complex medical question such as the causation or etiology of a lumbar spine disability that requires imaging studies in conjunction with medical expertise to diagnose. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The competent medical evidence in this case leads only to the conclusion that the Veteran’s lumbar spine disability was not the result of an in-service disease or injury but rather the result of the natural aging process. The Board notes its finding in this regard is in no way intended to diminish the value of the Veteran’s service, as the record establishes he had a decorated military career spanning more than three decades; however, the Board is required to rely on competent evidence to guide its nexus analysis with the only such evidence in this case weighing against the claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for a lumbar spine disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.