Citation Nr: 21023323 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-15 851A DATE: April 20, 2021 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the evidence of record demonstrates it is at least as likely as not that the Veteran’s low back disability is etiologically related to his active duty service. 2. The most probative evidence of record does not show that it is at least as likely as not that the Veteran’s bilateral hearing loss is etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to December 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2012 (bilateral hearing loss) rating decision and September 2012 (back) notification letter issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in August 2019 for additional development. Specifically, the Board requested that the RO assist the Veteran in obtaining private medical records, obtain and update VA treatment records, and provide the Veteran with new VA examinations. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Board’s August 2019 remand also addressed the issue of entitlement to service connection for tinnitus. In January 2021, the RO granted the Veteran’s claim to service connection for tinnitus. As this decision represents a full grant of the benefit sought, this issue is no longer on appeal. Service Connection Generally, service connection may be established on a direct incurrence basis for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) the existence of a chronic disability in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Under 38 C.F.R. § 3.303(b), continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases, including arthritis, and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for a low back disability. The Veteran seeks service connection for a back injury that he contends is related to his active military service. Specifically, the Veteran contends that he injured his back from unloading trucks while in service and has had low back pain since. See August 2012 VA examination; April 2013 Statement in Support of Claim. The evidence of record demonstrates the Veteran was diagnosed with lumbosacral degenerative joint disease, degenerative disc disease, degenerative arthritis of the spine, and chronic low back. See August 2012 and September 2020 VA examinations; May 2018 VA treatment records. Therefore, presence of a current disability has been met. See Shedden, 381 F.3d at 1167. In regard to an in-service event, injury, or disease, the Veteran’s service treatment records demonstrate the Veteran complained of and was treated for low back pain after lifting a heavy object. See December 1965 service treatment records. Therefore, the second criteria required to establish service connection has been met. See Shedden, 381 F.3d at 1167. The question before the Board is whether there is a link between the Veteran’s in-service complaints of back pain and his current low back disabilities. In that regard, the Veteran was initially afforded a VA examination in August 2012. The Veteran reported first injuring his back in service while unloading a truck and subsequently reinjuring his back about 3 to 4 months later in service. See August 2012 VA treatment records. The VA examiner opined that it was less likely than not that the Veteran’s low back disability was incurred in or caused by his service. Id. As rationale, the VA examiner noted the Veteran had minimal physical findings in service and no diagnosis was given. Id. The VA examiner noted the Veteran’s injury was not the type of injury that would lead to the later development of either lumbosacral degenerative joint disease or degenerative disc disease. Id. The VA examiner noted it was more likely than not he had some intercurrent injury, trauma, or event of which we are unaware. Id. However, the Board previously noted the VA examiner did not completely discuss the effect of the Veteran’s second reported injury to his back while in service or the repetitive effect of numerous loading and unloading of material on and off trucks. See August 2019 Board Remand. Additionally, there is no evidence in the record that the Veteran suffered an intercurrent injury, trauma, or event after his military service. Therefore, the Board finds the August 2012 VA examination inadequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran was afforded a second VA examination in September 2020. The Veteran reported his symptoms started while in service around 1965. See September 2020 VA examination. The VA examiner opined that it was less likely than not that the Veteran’s low back disability was incurred in service. Id. As rationale, the VA examiner noted the Veteran went for treatment of a lumbar strain once while in service; he did not mention lower back pain at his separation examination; and there was no further documentation of lower back pain until a July 1990 rating decision (denying the Veteran’s claim to service connection for a low back injury). Id. However, the VA examiner did not discuss the effects of loading and unloading materials on and off trucks would have had on the Veteran’s back disability while in service as directed by the Board’s prior remand. Additionally, the VA examiner incorrectly states there is no documentation of lower back pain until the July 1990 rating decision. In fact, the Veteran originally submitted a claim for service connection for a back injury due to service in May 1980. See May 1980 VA Form 21-526. Therefore, the Board finds the September 2020 VA opinion inadequate for decision making purposes. See Nieves-Rodriguez, 22 Vet. App. at 302. The Board acknowledges that there is no adequate medical opinion specifically stating that the Veteran’s low back disability is related to his active duty service. However, Board notes the Veteran is competent to provide lay evidence of the existence of symptoms that are capable of lay observation and may provide sufficient support for a claim of service connection. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that the Veteran is competent and credible to assert that he experienced observable back pain in service that has continued since service. For example, the Veteran reported a history of back pain for over 50 years since his military service and a VA physician indicated the Veteran has a primary medical history of chronic back pain. See September 2011 VA treatment records. The Veteran has consistently reported he hurt his back while serving in the military due to unloading and loading trucks. See February and March 2013 VA treatment records; August 2012 and September 2020 VA examinations; April 2013 Statement in Support of Claim; April 2016 Notice of Disagreement. Additionally, a February 2013 VA physician assessed the Veteran chronic low back pain for 40 years. See February 2013 VA treatment records. Thus, in applying the benefit of the doubt, the Board attributes the Veteran’s complaints of low back pain since service to his current low back disabilities, including lumbosacral degenerative joint disease, degenerative disc disease, and degenerative arthritis of the spine. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Therefore, the Board finds that continuity of symptomatology has been established. 38 C.F.R. § 3.303(b). In sum, although there are no adequate opinions addressing the etiology of the Veteran’s low back disability, the Board finds that the Veteran’s credible and consistent lay statements regarding the continuity of his symptoms since service are entitled to significant probative weight and sufficient to establish service connection in this instance. Accordingly, after resolving any doubt in favor of the Veteran, the Board finds that the evidence is at least in relative equipoise and supports a grant of service connection for a low back disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for bilateral hearing loss. Specifically, the Veteran contends he has bilateral hearing loss due to in-service noise exposure from gun ranges and driving trucks. See May 2014 Statement in Support of Claim. A hearing loss disability for VA purposes means that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Sensorineural hearing loss disability and tinnitus may be presumed to have been incurred in-service if the disorder was disabling to a compensable degree within a year of a veteran’s separation from active duty. 38 C.F.R. §§ 3.307, 3.309(a). The evidence of record demonstrates the Veteran was diagnosed with bilateral sensorineural hearing loss consistent with requirements for a hearing loss disability under 38 C.F.R. § 3.385. See January 2014 VA treatment records; January 2021 VA examination. Therefore, presence of a current disability has been met. See Shedden, 381 F.3d at 1167. As an initial matter, the Board first finds that, while the Veteran has bilateral hearing loss disability for VA purposes, it has not been shown by the evidence of record to have manifested to a compensable degree in service or within a presumptive period after service, and continuity of symptomatology is not established. See 38 C.F.R. §§ 3.307, 3.309(a). In that regard, the Veteran’s service treatment records are silent for any complaints, treatment, or diagnoses for any hearing related problems. The Veteran’s October 1996 separation examination demonstrates the Veteran’s hearing was normal at separation and the Veteran did not report any hearing related problems at the time of his separation from service. Additionally, the first indication of the Veteran’s bilateral hearing loss is in November 2012, more than 40 years after service. See November 2012 and January 2014 VA treatment records. While not dispositive, the passage of so many years between discharge from active service and objective documentation of a disability is a factor for consideration, and in this case, weighs against a finding of service incurrence and continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 (2012) (stating that, when the Board uses the absence of evidence as negative evidence, there must be “a proper foundation…to demonstrate that such silence has a tendency to prove or disprove a relevant fact."). The Board finds that it has not been demonstrated that the Veteran’s bilateral hearing loss was disabling to a compensable degree within a year of the Veteran’s separation from active duty. Accordingly, the presumption of in-service occurrence is not applicable. See 38 C.F.R. §§ 3.307, 3.309(a). Service connection for bilateral hearing loss may still be granted on a non-presumptive direct-incurrence basis; however, the preponderance of the evidence is against finding that the Veteran’s current bilateral hearing loss is related to an in-service injury, event, or disease, including the Veteran’s reported in-service noise exposure. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden 381 F.3d at 1166-67. With respect to an in-service injury or disease, the Veteran’s military occupation specialty (MOS) was a cook. See DD Form 214. The Veteran reported driving trucks while in service and being in and around firing ranges. See January 2021 VA examination. Therefore, the Board finds that the second Shedden criteria for service connection has been met. See Shedden, 381 F.3d at 1166-67. Though the Veteran has current bilateral hearing loss disability, the Board finds the most probative evidence of record does not demonstrate a link between the Veteran’s disability and his military service. In that regard, the Veteran was afforded a VA examination in January 2021. The VA examiner opined that it is not at least as likely as not that the Veteran’s bilateral hearing loss was caused by or a result of noise exposure in service. See January 2021 VA examination. As rationale, the VA examiner noted the Veteran’s MOS as a cook carries a low probability of noise exposure. Id. The VA examiner acknowledged the Veteran’s noise exposure from driving trucks and firing ranges has a moderate to high probability of noise exposure. Id. The VA examiner noted a comparison of the Veteran’s military audiograms from his service period does not indicate a significant threshold at the time of his separation from service. Id. The VA examiner further noted that the nature of the Veteran’s bilateral sensorineural hearing loss is not considered to be the result of events decades past as suggested by the Veteran’s lay statement claiming a delayed response to in-service noise exposure. Id. The VA examiner noted review of the Veteran’s service treatment records, VA e-folder, and conducted an in-person examination. Id. Therefore, the Board finds the January 2021 VA examination adequate for decision making purposes and entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 302. The Board acknowledges the Veteran’s statements contending that his bilateral hearing loss is related to his noise exposure during service. However, the Veteran is not competent to establish an etiological nexus between the Veteran’s bilateral hearing loss and his active duty service as such opinion requires medical expertise and knowledge that the Veteran has not been shown to possess. See Jandreau, 492 F.3d at 1377; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board attaches more probative weight to the clinical findings and medical opinion of the examiner who conducted the January 2021 VA examination than to the Veteran’s lay statements. Moreover, the Veteran nor his representative has provided any evidence to the contrary. Therefore, the Board concludes that the most probative and competent evidence of record does not establish that the Veteran’s bilateral hearing loss is etiologically related to his in-service noise exposure. (Continued on the next page)   In light of the above, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 53. Therefore, the claim to entitlement to service connection for bilateral hearing loss must be denied. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.