Citation Nr: 21029762 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-48 250 DATE: May 17, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. A rating in excess of 10 percent for lumbar spine degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) is denied. FINDINGS OF FACT 1. The Veteran had active duty from June 1998 to June 2002. 2. Bilateral hearing loss was not shown in service, not shown to a compensable degree within one year of service, symptoms not continuous since service, and hearing loss is not causally or etiologically related to service. 3. Tinnitus has been continuous since service. 4. A low back disability has been manifested by subjective complaints of back pain; objective findings include flexion to 90 degrees and a combined range of motion of 200 degrees with no spasms or guarding resulting in an abnormal gait or abnormal spinal contour, and no incapacitating episodes requiring bed rest prescribed by a physician or treatment by a physician. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred during service. 38 U.S.C. §§ 1110, 5017 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 2. Tinnitus was incurred during service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for a rating in excess of 10 percent for lumbar spine DDD with IVDS have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified at a March 2021 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Service Connection for Hearing Loss and Tinnitus Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss and tinnitus are recognized by VA as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Hearing Loss Turning to the evidence, the medical evidence does not reflect a current diagnosis of hearing loss. In this regard, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the 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. Test results at a May 2016 VA examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 0 LEFT 0 5 5 0 0 The average pure tone threshold was 4 in the right ear, and 3 in the left ear. Speech audiometry revealed speech discrimination scores of 100 percent in each ear. Thus, the examination did not reflect a current hearing loss in either ear as defined by VA regulations. Further, a review of treatment notes does not reflect complaints, treatment, or diagnosis of hearing loss. Therefore, hearing loss is not currently shown. Absent a current diagnosis or functional impairment, there is no disorder for which service connection may be granted. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the medical evidence does not support the claim as there is no present disability. The Board has considered the Veteran's lay statements that hearing loss was caused by service. Laypersons are competent to report symptoms because they experience or observe as this requires only personal knowledge as it comes to him through his senses. However, they are not competent to offer an opinion as to the diagnosis or etiology of the Veteran's current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examination obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements. Considering the above, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and there is no doubt to be otherwise resolved. As such, the appeal for bilateral hearing loss is denied. Tinnitus As to tinnitus, the May 2016 VA examiner noted complaints of tinnitus. Therefore, the first element of service connection is met. As to an in-service incurrence, the Veteran testified as to described noise exposure in service from his duties as an indirect fire infantryman, including exposure to loud and direct fire, weapons usage, and training simulations. There is no evidence of record which tends to contradict his testimony. As such, the second element of service connection has been met. As to continuity of symptomatology, at the March 2021 hearing, the Veteran testified that he began to experience tinnitus since service. While there is an absence of complaints or treatment for tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Although the May 2016 VA examiner indicated that tinnitus was not due to noise exposure while in service and cited to an Institute of Medicine report that found insufficient evidence to determine whether tinnitus could develop long after the cessation of noise exposure, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic" disease of tinnitus (38 C.F.R. § 3.309 (a)) based on a finding of "continuous" symptoms of tinnitus since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of tinnitus since service; therefore, tinnitus is presumed to have been incurred in service, and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of tinnitus since service separation, all other service connection theories are rendered moot. Increased Rating Claim for Lumbar Spine DDD with IVDS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran currently is rated at 10 percent for IVDS under DC 5243. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the amended version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the pre-amended regulation is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, a rating in excess of 10 percent would be warranted when the objective medical evidence showed the following: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20 percent); combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent); muscle spasms or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); incapacitating episodes of IVDS having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); or, in the absence of limitation of motion, degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (20 percent). The amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. Turning to the medical evidence, at a December 2015 VA examination, the Veteran described constant back pain with intermittent severe pain and loss of flexibility causing limited range of motion. He denied experiencing flare-ups. The examiner diagnosed IVDS and lumbar spine DDD. A physical examination revealed range of motion as forward flexion to 90 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 25 degrees, with a total combined range of motion of 200 degrees. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined after repetitive use over time, but the examiner determined that the examination neither supported nor contradicted the Veteran's statements describing functional loss with repetitive use over time. The examiner found that pain and weakness significantly limit functional ability with repeated use over time. The examiner found that the Veteran had no guarding or muscle spasms of the lumbosacral spine. The Veteran did not have ankylosis. The examiner found that he had IVDS; however, no incapacitating episodes were reported. Subsequent medical treatment notes found that the Veteran experienced exacerbations of low back pain; however, the treatment notes did not measure the range of motion of the lumbar spine or assess the presence and severity of any guarding, muscle spasms, ankylosis or IVDS. Based on the above, a rating in excess of 10 percent is not warranted. In this regard, the December 2015 VA examination found forward flexion was measured to 90 degrees and the total combined range of motion was measured at 200 degrees. Neither the examination nor the medical treatment notes found that he experienced guarding or muscle spasms. Such a disability picture is best embodied in the criteria for a 10 percent rating, as currently assigned. Additionally, the December 2015 VA examination found IVDS; however, no incapacitating episodes were reported. On review, the amendments did not change the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes. Further, the amended rating criteria allow for the assignment of DC 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve route. This is not shown, and the Veteran's disability remains appropriately evaluated under the general rating formula as discussed above. Accordingly, this medical evidence does support a higher rating. The Board has considered the lay statements and testimony submitted by the Veteran regarding the current severity of his low back disability. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of his back disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and treatment records) directly assess the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and have sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. Consideration has been given to assigning staged ratings; however, at no time during the periods in question has the Veteran's low back disability warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.