Citation Nr: 21023774 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-21 115 DATE: April 21, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for a back disability is granted. FINDINGS OF FACT 1. The evidence does not show that the Veteran’s bilateral hearing loss occurred during, was diagnosed within a year of service, or is otherwise etiologically related to his service. 2. The evidence is sufficient to show that it is as likely as not (50 percent or greater probability) that the Veteran’s back disability is etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 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 back disability have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from August 1963 to November 1966. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (1) the 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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). 1. Bilateral Hearing Loss The Veteran is seeking service connection for bilateral hearing loss, which he believes, resulted from noise exposure during his military service. His military occupational specialty (MOS) was as an Electronics Technician. A February 2015 rating decision, based upon a November 2014 VA medical opinion which indicated that the Veteran reported military aircraft noise exposure, granted service connection for tinnitus. As such, military noise exposure is conceded. However, military noise exposure alone is not considered to be a disability; rather, it must be shown that the military noise exposure caused a hearing loss disability for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service treatment records (STRs) contain audiometric testing completed at the July 1963 enlistment physical. Auditory thresholds prior to January 1, 1967 were recorded using American Standard Association (ASA) units, and in order to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to International Standards Organization-American National Standards Institute (ISO-ANSI) standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 500 1000 2000 3000 4000 Add 15 10 10 10 5 The audiometric testing at enlistment showed the following results (with ISO-ANSI conversion in parentheses): Hertz 500 1000 2000 3000 4000 Right -5 (10) -5 (5) -5 (5) 10 (20) 15 (20) Left 5 (20) 5 (15) 0 (10) 0 (10) 10 (15) STRs indicate that a whisper hearing test was conducted at separation with normal results of 15/15 in both ears. A February 2012 VA Examination diagnosed the Veteran with hearing loss for VA purposes. The results of the audiogram are as follows: Hertz 500 1000 2000 3000 4000 Maryland CNC Right 20 40 60 80 85 78% Left 20 35 50 75 80 78% The February 2012 examiner was unable to provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation due to the Veteran’s full claims file being unable for review. During this examination, the Veteran reported - that his first perceived hearing problems began about 10 to 12 years earlier (in 2000 to 2002) and that his left ear was worse than the right. The Veteran indicated to the examiner that he did not have a family history of hearing loss. The Veteran was afforded an additional VA examination in November 2014. The results of the audiogram are as follows: Hertz 500 1000 2000 3000 4000 Maryland CNC Right 20 40 65 80 85 88% Left 15 35 60 80 80 84% The examiner opined that the Veteran’s hearing loss was less likely than not (less than 50 percent probability) related to his noise exposure in service because there were no complaints or evidence of hearing loss in the STRs. The examiner also considered Veteran’s statements in 2012 where he stated that he first noticed hearing problems 10 to 12 years earlier (in 2000 to 2002), which would be many years after separation from the military. The examiner cited the Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006) by the Institute of Medicine which stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. The Board finds that the November 2014 VA opinion was issued after the examiner reviewed the whole claim file, including the Veteran’s lay statements, and conducted medical research. The opinion is consistent with the evidence of record and has not been contradicted or undermined by another medical opinion. As such, it is afforded great probative value. Veteran’s representative argued that his bilateral hearing loss was the result of repeated exposure to jet engine noise while performing his normal duties. See Statement in Support of Claim, dated July 8, 2014. At the January 2021 Board hearing, the Veteran testified that he first noticed his hearing difficulties about 10 years ago (approximately 2011) when he was sitting at his desk with a voltmeter that had a sonic signal. The Veteran testified that someone else had to turn the voltmeter off because he could not hear the noise. Veteran also indicated that during this same time he noticed having difficulty hearing his wife when she was speaking from another room. While the Veteran contends that his hearing loss is related to military service, to include noise exposure from jet engines, he did not report any issues with hearing at separation. In addition, he reported to the February 2012 VA examiner as well as to the Board that his hearing loss began decades after service in the 2000 to 2002 range (approximately 34 to 36 years after he separated from his service.) As the November 2014 VA opined, delayed hearing loss occurring many years after noise exposure is unlikely. The Veteran has not supplied any medical opinion linking his hearing loss to his military noise exposure and he has stated on multiple occasions that he first noticed his hearing loss decades after separating from service. Multiple medical opinions were obtained, but none connected the current hearing loss to the Veteran’s military noise exposure. Accordingly, the Board finds that the weight of the evidence is against the finding that the Veteran’s hearing loss occurred during or was diagnosed within a year of service or was a result of military noise exposure. Therefore, service connection for bilateral hearing loss is denied. 2. Service connection for lumbosacral strain. The Veteran is seeking service connection for a back disability, to include lumbosacral strain, which he contends first occurred during service. At the January 2021 Board hearing, the Veteran reported that his injury occurred when he was thrown across the room because of the electrical shock during service. He did not recall how hard he hit the wall; all he recalled was waking up across the room up against a door. Veteran did not report this event at the time nor did he go to the sick bay at the time for any injuries because he did not feel any pain immediately after the incident. He also testified that after he left the service, he noticed twinges in his back while he was carrying and picking up suitcases. He testified that these symptoms have gradually gotten worse, and that he sought medical treatment approximately 6 to 12 months after leaving the service. In addition, he testified that in the 1980s he had a back surgery where it was discovered that he had one ruptured disc, one crushed disc, one herniated disc, and bone spurs at three levels that had grown over time. (Of note, the Veteran contacted the hospital that completed the surgery and was told that no records were available due to a records purge in 2013. See Medical Treatment Records – Non-Governmental Facility Letter from Veteran, received February 9, 2021.) The Veteran provided a letter dated February 2021 from his chiropractor, Dr. Kock, who opined that Veteran’s service injury was the start of his chronic lumbosacral and pelvic problems. See Medical Treatment Records – Non-Governmental Facility, received February 9, 2021. Dr. Kock stated that the Veteran had been his patient for over 30 years, and that the Veteran reported his in-service injury to him at his initial consultation with this physician many years earlier. Dr. Kock opines that Veteran’s prior surgery did not prevent periodic active exacerbations of his back issues. Dr. Kock also opined that Veteran’s back issues were a result of his injury in service because the Veteran was experiencing earlier than normal onset of degenerative disc disease and spondylosis and stenosis in his lumbar spine. Dr. Kock stated that the Veteran was still seeing him on average once every couple months for low back and hip symptoms. STRs did not show any complains of or treatment for a back injury. VA treatment records show that the Veteran complained of chronic back pain. He reported lumbar spine fusion status post laminectomy in the 1980s. The Board finds that the Veteran’s lay statements regarding his in-service injury to be credible. It is notable that he reported the same incident and injury to his physician 30 years prior when he sought medical treatment and long before his benefits claim was filed. This adds weight to the Veteran’s statements as he would be expected to report an injury as accurately as possible in order to receive the best treatment. In addition, Dr. Kock’s medical opinion provides evidence of a nexus between Veteran’s in-service injury and current disability. Therefore, the Board finds that it is as likely as not (50 percent or more probability) that the Veteran’s back disability began during service. Accordingly, service connection for a back disability is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jennifer M. Narvaez, 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.