Citation Nr: 21028957 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-38 894 DATE: May 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for degenerative arthritis of the lumbar spine (low back disability) is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss first manifested many years after his separation from service and is not related to his service or any incident therein, including noise exposure. 2. The Veteran's current low back disability was not incurred in, and is not otherwise related to, his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded this claim in December 2019 to the agency of original jurisdiction (AOJ) for additional development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's appeal has been advanced on the docket. 38 C.F.R. § 20.902. SERVICE CONNECTION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, to include high frequency sensorineural hearing loss an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in 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. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). 1. Entitlement to service connection for bilateral hearing loss. The Veteran asserts that his bilateral hearing loss is related to his active military service. Upon review of all evidence of record, the Board finds that the Veteran's service connection claim must be denied. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Notably however, "section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley v. Brown, 5 Vet. App. 155, 159 (1993). "When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Id. at 160. Turning to the evidence of record, the Veteran was afforded a VA audiological examination in July 2016. On examination, the Veteran was shown to have bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. As such, the Board finds that the present disability element for service connection has been established. Next, the Board finds that in-service incurrence element has been satisfied. The Veteran's Form DD 214 shows his military occupational specialty (MOS) as a records clerk. However, as evidenced by his Marksman Rifle award, he was stationed on a machine gun without any protective hearing gear. Accordingly, VA has conceded exposure to hazardous military noise during service. Also, an August 2020 rating decision awarded the Veteran service connection for his tinnitus. As to the nexus element, the Veteran's service treatment records (STRs) show that, on the entrance and separation examinations, there were no noted hearing conditions. In fact, the Veteran denied experiencing hearing loss at separation. See March 1966 Report of Medical History. The Veteran had an in-service audiological evaluation in March 1966, before the Veteran's discharge, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary 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 ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data. The converted March 1966 auditory thresholds were as follows: Hertz 500 1000 2000 3000 4000 Right ear 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) Left ear 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) As illustrated above, the Veteran's in-service audiological evaluation showed normal hearing, bilaterally. The February 2020 VA examiner also considered the converted puretone thresholds and confirmed these findings. Significantly, the examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service because his separation examination showed no hearing loss and there is no significant threshold shift from entrance to separation examination. In addition, as noted, the Veteran denied having or ever having hearing loss and ear trouble at separation. The Veteran's other STRs also show no complaints, treatment, or diagnosis related to hearing loss. Further, after reviewing the evidence of record and examining the Veteran, the July 2016 VA examiner determined that a causal link could not be established between the Veteran's hearing loss and any noise exposure in-service. The examiner concluded that considering that the Veteran had normal hearing bilaterally at separation from service, it is less likely than not that his hearing loss was caused by or as a result of an event in military service. Pursuant to the December 2019 Board remand directives, the Veteran was afforded another VA examination in February 2020. While the examiner was not able to test the Veteran's puretone thresholds, the Maryland CNC speech discrimination scores were 40 percent in the right ear and 30 percent in the left ear. The examiner noted that due to poor speech recognition threshold (SRT) to puretone average (PTA) agreement, testing was not considered valid for rating purposes, however, re-tests of pure tones were consistent. The examiner opined that the Veteran's hearing loss is not considered at least as likely as not caused by or a result of an event in military service. The examiner based this opinion on the fact that after conversion to ISO standards, both, entrance and separation examination do not show significant threshold shift. The Board finds the July 2016 and February 2020 VA opinions adequate, competent and probative for the purpose of addressing the Veteran's claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiners have the necessary expertise as Audiologists, their opinions are based on an accurate medical history and the examiners provided an explanation that contains a clear conclusion and supporting rationale. Further, the evidence of record substantiates the July 2016 and February 2020 VA opinions. Significantly, a review of the Veteran's post-service records show that he complained of a significant change in his hearing in May 2016, 50 years after his separation from active duty. He also reported significant noise exposure in the military and his work over the years. The Veteran's treatment records reflect that he has worked as a steel worker since his separation. Thus, in light of the foregoing, the Board finds that even accepting that the Veteran was exposed to noise in service, the record does not substantiate the claim that his current hearing loss is related to any in-service noise exposure. The Board recognizes the contentions of the Veteran's representative, arguing that the February 2020 VA examination is incomplete for VA rating purposes. See May 2021 Post-Remand Brief. As noted, for service connection purposes, a current bilateral hearing loss diagnosis is of record. Such is not in dispute. Additionally, while the February 2020 VA examination testing was not considered valid for rating purposes, the examiner noted that the nexus medical opinion was valid. The Board also finds the medical opinion to be valid, as it was based on the record, including the service records and the examiner provided an adequate rationale to support his conclusion. The medical opinion is also consistent with other objective evidence of record. The evidence of record shows that the Veteran's bilateral hearing loss first manifested many years after his separation from service and is not related to his service or any incident therein, including noise exposure. As such, the Board finds the February 2020 VA opinion probative to address the Veteran's claim. The Veteran's contentions are also acknowledged. At the September 2019 Board hearing, the Veteran testified that he went through multiple periods where he lost his hearing for a week or so during service. He also testified that he did not notice any hearing loss until about a year or two after service. The Veteran's contentions are contradicted by the evidence of record. Specifically, as noted, the Veteran's STRs do not show any complaints, treatment or diagnosis related to the Veteran's hearing. At his March 1966 separation examination, no significant puretone threshold shift was noted. The Veteran also did not report any hearing issues on his March 1966 Report of Medical History. Further, the evidence of record shows that on his January 1968 application for VA compensation (VA Form 21-526), the Veteran did not claim hearing loss or hearing-related issues, whereas other disorders were noted. Accordingly, the Board finds that the objective, persuasive evidence substantiates the July 2016 and February 2020 VA opinions. Thus, the Board finds the VA opinions more probative. The Board also considered service connection under the continuity of symptomatology theory. As noted, bilateral hearing loss was not indicated or suggested in service, and bilateral hearing loss was not shown to have manifested to a compensable degree within a year of separation. In fact, as noted, the Veteran reported a significant change in his hearing in May 2016, many years after his separation from active duty service. As such, to the extent the Veteran asserts that his hearing issues have been ongoing since the military, he is competent to relate experiencing a decrease in hearing acuity during service because it is a readily observable symptom. However, the Board finds that the evidence contemporaneous to his service is more reliable as to his then-existing physical condition (as opposed to his later statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). Moreover, the competent and probative VA opinions outweigh any lay assertion that the current bilateral hearing loss is related to military noise exposure. Thus, the continuity of symptomatology framework is not sufficient to grant this claim. In reaching the conclusion that bilateral hearing loss is not warranted, the Board remains sympathetic to the Veteran and grateful for his military service, and regrets that a more favorable outcome could not be reached. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Thus, service connection for hearing loss is denied. 2. Entitlement to service connection for low back disability. The Veteran asserts that his low back disability is related to his active military service. Upon review of all evidence of record, the Board finds that the Veteran's service connection claim must be denied. First, a current diagnosis of degenerative arthritis of the spine is of record. See February 2020 VA examination. As such, the first element of the service connection has been established. Next, as to the second element of in-service incurrence, the Board finds that this element has not been met. The Veteran contends that his back pain is related to an auto accident while on active duty, even though he did not seek treatment at that time. See September 2019 Board hearing transcript. He also testified that he sought treatment for his back in the summer of 1966. Id. The Board notes that attempts made to obtain the VA records during that timeframe were unsuccessful. See December 2019 VA notification letter. The Veteran's STRs do not show any complaints, treatment or diagnosis related to his back. At March 1966 separation examination, the Veteran's back was noted as normal. He also did not report any issues related to his back. See March 1966 Report of Medical History. A review of the Veteran's post-service records shows that he first sought treatment for his back in December 1991, after injuring his back as a result of lifting something heavy. See private treatment records. At the February 2020 VA examination, the Veteran reported that he could have possibly hurt his back in the military, but the severe pain with nerve problems did not begin until years after separation. Based on the foregoing, the Board finds that the in-service incurrence element has not been established. With regard to the nexus element, the Veteran underwent a VA examination for his back in February 2020. He reported having issues with walking due to his back pain. He admitted to "abusing" his low back as a result of his job and recreational activities. He reported working heavy physical labor jobs after separation from active duty service and engaging in dirt racing/drag car racing for recreation. The Veteran reported being involved in a "jeep wreck" while on active duty but he did not recall a back injury at that time. He reported having back issues years after separation and not being able to alleviate his back pain with any medical source. The examiner opined that the Veteran's low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In reaching this opinion, the examiner noted that the Veteran's STRs are silent for concurrent complaints, treatment or diagnosis related to the Veteran's back. The examiner also noted that the Veteran's separation examination in March 1966 did not document any back issues. In addition, the examiner pointed out that the Veteran filed a claim for conditions examined at a March 1968 VA examination, but he did not claim a back condition at that time. The Board accords great probative weight to the February 2020 VA opinion. The examiner considered all of the pertinent evidence of record, to include the Veteran's statements, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra. The objective evidence of record is also consistent with the examiner's conclusion. The Board acknowledges the Veteran's statements indicating that his low back disability is related to in-service injury and he has had pain in his back since service. See September 2019 Board hearing transcript. In addition, at the September 2019 Board hearing, the Veteran testified that he sought treatment at a VA medical facility after his separation from active duty in 1966. While the Board notes that the Veteran is competent to report his symptoms of pain and treatment received, he is not competent to offer an opinion to establish an etiological nexus between his current disorder and service or any event of service. Such is a complex medical question that requires medical training and expertise. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Veteran does not have the required medical training or expertise to create a causal connection. Further, the evidence of record shows that on his January 1968 application for VA compensation (VA Form 21-526) the Veteran did not claim a back injury, whereas several other disorders such as a knee disorder, left hand disorder, nervous stomach, and lung disorder were noted. Thus, it is reasonable to conclude that any lower back complaints or disorders would have also been raised at that time. As such, the Board notes that the objective, persuasive evidence substantiates the February 2020 VA opinion. Thus, the Board finds the VA opinion more probative. The Board also acknowledges that the Veteran's medical records suggest that his low back disability is related to his military service, to include the jeep accident while on active duty. See July 2016 private treatment record. Nonetheless, the Board finds these records to be less probative as it appears this finding was based upon the Veteran's self-reported history. As explained above, the Veteran is not competent to make a determination whether or not his low back disability is related to his military service. Additionally, there is no evidence to indicate, aside from the Veteran's general assertions, that his low back disability stems from the jeep accident while on active duty. As noted, the objective evidence of record shows that his low back disability had its onset many years after his separation from active duty service. The Board has considered whether service connection is warranted on a presumptive basis for chronic diseases. 38 C.F.R. § 3.309(a). As noted, the evidence does not show that the Veteran's back disorder manifested to a degree of 10 percent or more within a year of separation from service; therefore, presumptive service connection is not warranted. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board also has considered whether service connection is warranted based on the continuity of symptomatology framework. 38 C.F.R. § 3.303(b). As noted, the Board finds that the evidence contemporaneous to the Veteran's service and following active service is more reliable in regard to the state of his health. Specifically, as noted, on his March 1966 separation examination the Veteran did not reported a back injury and the examiner did not diagnose or note any back condition on examination of the Veteran. Further, as noted, on his January 1968 application for VA compensation (VA Form 21-526) the Veteran did not claim a back injury. The Bord notes that the contemporaneous evidence as to his then-existing physical condition, such as his medical examination report at discharge (as opposed to his later statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). As such, even though the Board remains sympathetic to the Veteran's assertions, the evidence of record does not support his continuity of symptomatology statements. The lay assertions are contradicted by competent, credible and probative evidence. Additionally, the VA opinion outweighs any lay assertions that the Veteran's current low back disability is related to his active military service, including continuity since service. In sum, the evidence weighs against a finding that the Veteran's low back disability was incurred in, or was otherwise related to, active military service. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. (Continued on the next page) Thus, the appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.