Citation Nr: 21027106 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-33 092 DATE: May 4, 2021 ORDER Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a cervical spine disability is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss had no worse than a level I hearing loss in both the right and left ear throughout the period on appeal. 2. The preponderance of the evidence is against a finding that the Veteran's lumbar spine disability is etiologically related to his active military service. 3. The preponderance of the evidence is against a finding that the Veteran's cervical spine disability is etiologically related to his active military service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1966 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in August 2018 but were remanded to provide the Veteran with VA examinations for his disabilities. In April 2019, the Board again remanded the claims on the basis that the Veteran was not notified of his VA examinations. Following the April 2019 Board remand, the RO rescheduled the Veteran's VA examination for his disabilities on appeal and he was informed of the scheduled VA examinations on January 2020. As such, the Board finds that there has been substantial compliance with the April 2019 Board remand. Accordingly, in a May 2020 supplemental statement of the case (SSOC), his claims were denied. These matters are again before the Board for adjudication. 1. Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied. The Veteran seeks an initial compensable rating for his bilateral hearing loss disability. However, no specific assertion has been made by the Veteran asserting any error or describing the how the disability results in any occupational or social impairment. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. Evaluations of defective hearing range from 0 to 100 percent. This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the Maryland CNC speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the puretone decibel loss. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity. The ratings for disability compensation for hearing loss are determined by the mechanical, meaning non-discretionary, application of the above criteria. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Upon review of the evidence, the Board finds that the preponderance of the evidence does not reflect that an initial compensable rating is warranted for his bilateral hearing loss disability. The Veteran's initial VA examination on May 2013 shows his puretone thresholds for the right ear, in dB, were 25dB at 1000Hz; 40dB at 2000Hz; 55dB at 3000Hz; and 60dB at 4000Hz, with an average of 45dB. Puretone thresholds for the left ear, in dB, were 15dB at 1000Hz; 20dB at 2000Hz; 60dB at 3000Hz; and 45dB at 4000Hz, with an average of 35dB. Speech discrimination scores revealed speech recognition ability of 94 percent for the right ear and 92 percent for the left ear. Applying his average dB and speech discrimination scores to Table VI, both his right and left ear yields a level I hearing loss. As both, the right and left ear, yields the same level of hearing loss, there is no poorer or better ear to be distinguished. Applying these results to Table VII, a Level I for the right ear combined with a Level I for the left ear results in a non-compensable rating for his bilateral hearing loss disability. The Veteran was provided with another VA examination in January 2020 to determine the current severity of his bilateral hearing loss disability. That VA examination shows his puretone thresholds for the right ear, in dB, were 25dB at 1000Hz; 50dB at 2000Hz; 65dB at 3000Hz; and 60dB at 4000Hz, with an average of 45dB. Puretone thresholds for the left ear, in dB, were 25dB at 1000Hz; 45dB at 2000Hz; 60dB at 3000Hz; and 55dB at 4000Hz, with an average of 35dB. Speech discrimination scores revealed speech recognition ability of 94 percent for both ears. Applying his average dB and speech discrimination scores to Table VI, both his right and left ear, yields a level I hearing loss. Applying these results to Table VII, his bilateral hearing loss disability, the Board again finds that his bilateral hearing loss results in a non-compensable rating. As the Veteran has not made any specific assertions and there is no evidence to the contrary, the Board finds the May 2013 and January 2020 VA examinations to be the most probative evidence here. Accordingly, the Board finds that preponderance of the evidence is against assigning an initial compensable rating for the Veteran's bilateral hearing loss disability. The Board has considered the benefit of the doubt doctrine in this matter but finds that it is not applicable. Thus, the Board finds that the Veteran's claim must be denied. Service Connection 2. Entitlement to service connection for a lumbar spine disability is denied. 3. Entitlement to service connection for a cervical spine disability is denied. The Veteran seeks service connection for a lumbar spine and cervical spine disability. Again, the Veteran has not made any specific assertions on these matters. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Veteran was rescheduled to attend a VA examination on February 2020 for his lumbar spine and cervical disability. However, the record indicates he did not show up to these VA examinations. Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. More specifically, when a claimant fails to report for a medical examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b). To date, there are no statements or correspondence with the VA to explain why he missed the VA examinations or to request a rescheduling of the VA examinations. As such, the Board is left to determine the Veteran's claims based on the evidence of record at this time. In these matters, the Board finds that the preponderance of the evidence is against a finding that his lumbar spine and cervical spine disability is etiologically related to his service or that it manifested to a compensable degree within a year after separation from service. The Board finds that the Veteran has a current diagnosis of a lumbar spine disability and cervical spine disability. As reported in a December 2011 VA treatment record, the Veteran underwent a magnetic resonance imaging (MRI) of his lumbar spine which showed degenerative facet joint disease at L4-L5 and L5-S1. A November 2011 VA treatment record also noted x-ray findings of degenerative disc disease of his cervical spine and cervical stenosis. The Board further finds that the Veteran's STRs shows he was seen and treated for a stiff neck and joints in May 1967 and October 1967. However, the Board finds that there is no indication that his current lumbar spine and cervical spine disability are related to his in-service complaints and treatment for his stiff neck or joints. As previously discussed, the Veteran failed to report to examinations in February 2019 and again in February 2020. Evidence generated from these scheduled VA examinations could have been beneficial to his claim. Upon a full review of his claims file, the Board can point to no evidence suggestive of a medical nexus for these two disabilities and the third requirement to establish service connection has not been satisfied. As such, the Board finds that entitlement to direct service connection for his lumbar spine and cervical spine disability is not warranted. As arthritis of the lumbar and cervical spine is considered to be a chronic disease under 38 C.F.R. § 3.309 (a), the Board has also considered whether he is entitled to presumptive service connection for these disabilities. Unfortunately, the earliest date showing any complaints related to his lumbar spine disability was in January 2011 when he complained of low back pain. Moreover, while the Veteran reported an eight-year history of cervical spine pain in a December 2011 VA treatment record, the earliest that the Board can conclude his disability began is in 2003. As such, the evidence fails to show that the Veteran's lumbar spine and cervical spine disability manifested to a compensable degree within a year after his separation from service in 1969. (Continued on the next page) The Board is grateful for the Veteran's service. However, the Board finds that preponderance of the evidence fails to show that his lumbar spine and cervical spine disability are etiologically related to service or that arthritis manifested to a compensable degree within a year after separation from service. The Board has considered the benefit of the doubt doctrine but finds that is applicable. Thus, the Veteran's claims must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.