Citation Nr: 21030975 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-09 901 DATE: May 20, 2021 ORDER Entitlement to service connection for a right elbow disorder is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right elbow disorder began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that a low back disorder began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that Veteran has, or has had at any time during the appeal, bilateral hearing loss for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for a right elbow disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 2004 to November 2005, to include service in Southwest Asia theater. The Veteran testified at a February 2019 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. These issues were remanded by the Board in a September 2019 decision for further development. The issues have since returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including sensorineural hearing loss, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2019); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. See Walker, supra; 38 C.F.R. § 3.309(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a right elbow disorder is denied. The Veteran asserts that he is entitled to service connection for a right elbow disorder on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's right elbow disorder did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. The service treatment records (STRs) are silent for complaints or treatment for a right elbow disorder. On the October 2005 post-deployment health assessment, the Veteran indicated that he did not experience swollen, stiff, or painful joints. On the October 2005 health assessment, the Veteran did not report any injuries. On the July 2010 STR medical prescreen of medical history, the Veteran indicated that he did not experience a swollen, painful, dislocated joint, or fluid in a joint. In a December 2015 post-service VA treatment record, the Veteran stated that he has experienced intermittent right elbow pain for 10 years. He stated that he experiences symptoms when he is pulling or lifting something that lasts for only a moment. He stated that the right elbow pain seems to have started with a wrenching injury while on active duty. At the February 2019 Board hearing, the Veteran testified that he was going into a five-ton truck and he put his foot on the step and slipped. Board Hearing Transcript (T.) at 7. He stated that he scratched his body on the plate to prevent the fall and felt a rip or tear in the elbow. Id. He stated that he was not looking for a reason to not perform his tasks and was ready to go on the mission and not be left behind. Id. At the Board hearing, the Veteran testified that the symptoms are inconsistent. T. at 7. He stated that the symptoms are not every day. Id. He explained that two months could pass and then he could grab something and then he would experience the pain in the elbow. Id. The Veteran stated that he experiences pain three times a month to once every two months. T. at 8. The Veteran stated he currently experiences the same symptoms as at the onset in service. T. at 8-9. On the January 2020 VA elbow examination, the Veteran stated that the right elbow disorder began in 2004. He stated that the disorder started as a result of pulling himself up onto a truck and slipping on a step. The Veteran reported that the symptoms at the time of onset were elbow pain and soreness. The Veteran stated that he did not receive treatment and the condition has stayed the same. The January 2020 VA elbow examiner opined that the Veteran's right elbow medial epicondylitis is less likely than not caused by service. The examiner reasoned that although the Veteran is presumed to be a credible source, the medical records show that he first denied any trauma to the elbow and only later stated that the elbow condition was from wrenching while in service. Also, the examiner acknowledged that during the February 2019 Board hearing, the Veteran reported that the elbow disorder was due to falling and catching himself with his arm and feeling a tear. Further, the examiner stated that the Veteran reported that he did not complain in service because he wanted to be home. However, the examiner noted that the first complaint of the elbow noted in medical records is 2015, ten years after active service. Therefore, the examiner opined that the right elbow disorder is less likely than not caused by service. Based on the foregoing, the Board finds that the weight of the evidence does not support a finding that the Veteran's right elbow disorder was manifested in service or to a compensable degree in the first year following his separation from service. Consequently, service connection for a right elbow disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. The first complaint of a right elbow disorder occurred in 2015, 10 years after separation from service Notably, the Veteran has not submitted competent evidence to show that he has suffered from the right elbow disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The Board acknowledges the Veteran's assertion that he did not report the right elbow disorder due to wanting to be released to return home; however, in a July 2010 STR, the Veteran again did not report experiencing joint pain. Therefore, the Board finds that the Veteran did not continuously experience right elbow pain since separation from active duty. The weight of the evidence also does not support a finding that the Veteran's right elbow disorder is otherwise related to service. The Veteran's post-service treatment records are silent for an opinion relating his right elbow disorder to service. The only competent evidence in the record that addresses this question is the January 2020 VA medical opinion, which stated that the Veteran's right elbow disorder was not related to his service. As there is no other evidence to the contrary, and the January 2020 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. Further, the Veteran's own statements relating his right elbow disorder to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether medial epicondylitis, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, medial epicondylitis is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right elbow disorder. Accordingly, it must be denied. 2. Entitlement to service connection for a low back condition is denied. The Veteran asserts that he is entitled to service connection for a low back disorder on a direct basis. However, as outline below, the preponderance of the evidence of record demonstrates that the Veteran's low back disorder did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. The STRs are silent for complaints or treatment for a low back disorder. On the October 2005 post-deployment health assessment, the Veteran indicated that he did not experience back pain. On the October 2005 health assessment, the Veteran did not report any injuries. On the July 2010 STR medical prescreen of medical history report, the Veteran indicated that he did not experience recurrent back pain. In a December 2015 post-service VA treatment record, the Veteran complained of low back pain for the past 10 years. In a December 2015 lay statement, fellow serviceman, K.P.R., stated that he served oversees with the Veteran. He stated that they worked together loading equipment to be shipped overseas. He stated that most of the equipment was very heavy and had to be moved manually with little help from machinery. He stated that on arrival overseas, they were tasked with unloading the equipment. He stated that they were also assigned to armor the vehicles, that included cutting plates of steel and placing them in the windows of the vehicles. He stated that the vehicle repairs and long work hours had an effect on the body. He stated that he also suffers from low back pain due to these tasks. In a December 2015 statement, the Veteran stated that in addition to the duties described by K.P.R., he also injured his low back while working in the motor pool replacing parts on a vehicle. He stated that he experienced the same sharp pain in the low back that was so severe that he had to stop his tasks. He stated that these symptoms continued throughout the remainder of the deployment. He stated that he feels the metal plates, heavy repair parts, and daily long hours were the cause of his low back disorder. At the February 2019 Board hearing, the Veteran testified that during service he was assigned to the motor pool. T. at 4. Here, he stated that he was to support the vehicles with armor and sandbags to make the vehicles safe. Id. He stated that while transitioning the vehicles, he injured his back. T. at 5. The Veteran stated that he ignored the back injury because he was focusing on readying the vehicles. Id. The Veteran stated that when he returned from deployment, he did not seek treatment because it was rumored that he would be held for reports of injuries. T. at 5. As a result, the Veteran stated that he did not report the injury because he was ready to return home. Id. The Veteran further testified that he injured his back when he was lifting metal to remove the glass. T. at 5. He stated that he was grabbing a metal plate to slide in the door. Id. He stated he experienced a twist or turn in the back and had sharp pain. Id. He stated that he continued the mission. Id. He stated that the back symptoms "went away, came back, went away." Id. He stated that when he returned home the symptoms remained. Id. He stated that he sought treatment at VA, and he was provided with physical therapy and Ibuprofen. Id. He stated that he continues to suffer from low back pain. Id. The Veteran stated that he now experiences constant pressure in the low back. T. at 6. On the January 2020 VA back examination, the Veteran stated that the low back disorder began in 2004 as a result of physical training and from replacing glass windows with steel plates on vehicles. The Veteran stated that the symptoms at the time of onset were back pain and stiffness. The Veteran stated that treatment included ibuprofen. The Veteran stated that his low back disorder has worsened over the years with current symptoms of pain and stiffness. The January 2020 VA back examiner opined that the Veteran's lumbosacral strain is less likely than not caused by service. The examiner reasoned that although the Veteran is a credible source and physical requirements of active duty can be strenuous on the back, there are no reports showing continuity of complaints. The examiner noted that the Veteran reports that he did not complain as he did not want to be detained any longer; however, the medical records review shows that the first record of any back disorder was ten years after separation from service. Based on the foregoing, the Board finds that the weight of the evidence does not establish that the Veteran's low back disorder was manifested in service or to a compensable degree in the first year following his separation from service. The first complaint of a back disorder occurred in 2015, 10 years after separation from service. Consequently, service connection for a low back disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from the low back disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The Board acknowledges the Veteran's assertion that he did not report the low back disorder due to wanting to be released to return home; however, in a July 2010 STR, the Veteran again did not report experiencing low back pain. Therefore, the Board finds that the Veteran did not continuously experience low back pain since separation from active duty. There is also no evidence that the Veteran's low back disorder is otherwise related to service. The Veteran's treatment records are silent for an opinion relating his low back disorder to service. The only competent evidence in the record that addresses this question is the January 2020 VA medical opinion, which stated that the Veteran's low back disorder was not related to his service. As there is no other evidence to the contrary, and the January 2020 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. Further, the Veteran's statements relating his low back disorder to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether a strain, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Court). Also, a strain is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a low back disorder. Accordingly, it must be denied. 3. Entitlement to service connection for bilateral hearing loss is denied. The Veteran asserts that he is entitled to service connection for bilateral hearing loss. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to service. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes and has not had bilateral hearing loss for VA purposes at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. Here, the January 2020 VA audiological examination found puretone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 20 25 30 25 25 LEFT 15 20 25 20 20 The average thresholds were 25 decibels in the right ear and 20 in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. The January 2020 VA audiological examination shows that the Veteran does not have the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz of 40 decibels or greater; or the auditory thresholds for at least three of those frequencies of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test that are less than 94 percent. See 38 C.F.R. § 3.385. Therefore, the Veteran does not have impaired hearing for VA purposes. While the Veteran believes he has a current diagnosis of bilateral hearing loss for VA purposes, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has bilateral hearing loss for VA purposes for which benefits are being claimed. Because the evidence does not establish that the Veteran has bilateral hearing loss for VA purposes, the Board finds that the Veteran is not entitled to service connection for bilateral hearing loss. The claim must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.