Citation Nr: 21031840 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-00 256 DATE: May 24, 2021 ORDER 1. Entitlement to service connection for a lumbar spine disorder is denied. 2. Entitlement to service connection for bilateral hearing loss is denied. REMANDED 3. Entitlement to service connection for a heart disorder, to include as secondary to exposure to herbicide agents and/or asbestos, is remanded. 4. Entitlement to service connection for hypertension, to include as secondary to exposure to herbicide agents and/or asbestos, is remanded FINDINGS OF FACT 1. The Veteran is not shown to have sustained a back injury or to have been treated for lumbar spine complaints during active service, a lumbar spine disorder was first diagnosed many years after his active service, and any current lumbar spine disorder is not shown to be etiologically related to his active service. 2. The preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss is etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. Service connection for a lumbar spine disorder is not warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 2. Service connection for bilateral hearing loss is not warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active service from December 1966 to September 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 Department of Veterans Affairs (VA) rating decision that denied service connection for a lumbar spine disorder, bilateral hearing loss, a heart disorder, and hypertension. In May 2020, the Board remanded the claims for further development. As the directives in the May 2020 remand having been substantially compiled with, the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This case has been advanced on the Board's docket. 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; 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only 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). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While 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. Lumbar Spine Disorder The Veteran asserted that his lumbar spine disorder was incurred during his active service. He reported he injured his back in service after falling off an aircraft. The Veteran's service treatment records (STRs) do not show any complaints, treatment, or diagnosis of a lumbar spine disorder during his active service. In October 1967, the Veteran treated for a sore hip after falling off an aircraft and landing on his hip. However, no back complaints were noted. At his August 1970 separation physical, he had a normal examination of his spine with no back complaints noted. On November 1970 VA examination, the Veteran reported back pain. On examination, his back was normal with no evidence of muscle spasms, limitation of motion, pain, or tenderness. In addition, lumbar spine x-rays were normal. The Veteran's STRs from his reserve service show that at annual physicals in September 1980, September 1987, September 1990, May 1994, and June 1998, he had normal examinations of his spine. In addition, on medical questionnaires submitted in conjunction with the examinations in September 1987, September 1990, May 1994, and June 1998, he specifically denied having any recurrent back pain. Post service medical records show that the Veteran was first diagnosed with a chronic lumbar spine disorder by a June 2002 lumbar spine x-ray and a June 2002 MRI, which was over three decades after his separation from active service. On March 2021 VA examination, it was noted that the examiner reviewed the Veteran's claims file and interviewed and examined him. The examiner noted a current diagnosis of lumbar degenerative disc disease with stenosis and facet arthropathy after lumbar laminectomy. The Veteran reported that his back pain started after falling off an aircraft in service. He admitted that he did not seek medical care at the time of the injury. The examiner opined that the Veteran's lumbar spine disorder was less likely than not incurred in or caused by his active service. The examiner reported that at the Veteran's August 1970 separation physical, he was not diagnosed with a back condition, and he did not complain of back pain. The examiner noted that the Veteran's complaints of back pain after falling off an aircraft, but also noted that a back injury was not reported in service, and combined with the Veteran's normal examination afterwards, the likelihood of a back injury after falling off an aircraft was exceedingly small. The examiner concluded that there was no objective evidence to suggest that the Veteran's lumbar spine disorder was due to his active service. The examiner found that it was less likely than not that the Veteran's current lumbar spine disability was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran's reports of an in-service injury and back pain after a fall, however noted that at separation in August 1970 clinical evaluation was normal and thus any likelihood of a chronic back condition caused by this reports injury was exceedingly small. A chronic lumbar spine disability was not manifested in service. While the record shows that the Veteran was seen for hip complaints after falling off an aircraft, his STRs do not document any back injury, complaints, or diagnosis. In addition, he served for three more years afterwards with no complaints or symptoms noted. On the separation examination, in August 1970 clinical evaluation of the spine was normal. At a November 1970 VA examination, he had normal back findings on examination and a lumbar spine x-ray was normal. Furthermore, the Veteran's reserve service showed that from 1980 to 1998, he had normal examinations of his spine and denied having recurrent back pain. The Veteran has not submitted any competent (medical opinion) evidence to the contrary. There is also no evidence in the record that his lumbar spine arthritis was manifested in the first post service year. Consequently, service connection for a lumbar spine disorder on the basis that such disability was shown as chronic in service, on a chronic disease presumptive basis, or based on continuity is not warranted. The competent (medical) evidence in the record that directly addresses the matter of a nexus between a lumbar spine disorder and the Veteran's service is found in the findings and opinion of the March 2021 VA examiner. The Veteran reported that he injured his back in service after falling off an aircraft, but did not seek medical treatment. However, the VA examiner concluded that the Veteran's lumbar spine disorder was less likely than not due to the Veteran's active service. The opinion (against the Veteran's claim) reflects familiarity with the entire record, including the Veteran's accounts, and includes rationale that cites to supporting clinical and factual data. The Board finds the March 2021 VA medical opinion to be probative evidence in this matter. As there is no competent evidence to the contrary, the Board finds it persuasive. In July 2015, fellow sailor D.V. reported that he served with the Veteran. D.V. reported that the Veteran told him that he fell off an aircraft. D.V. reported that he observed some "discomfort" afterwards. This statement along with the Veteran's own opinion that his lumbar spine disorder was incurred in service is not probative evidence in the matter. The Veteran reported that he injured his back at the same time he fell off an aircraft and treated for hip complaints is inconsistent with contemporaneous clinical data, including his normal spine examination at his August 1970 separation examination, a normal spine examination and normal lumbar spine x-rays at a VA examination in November 1970, and his subsequent normal spine examinations during his reserve service in September 1980, September 1987, September 1990, May 1994, and June 1998, with his specifical denials of having any recurrent back pain. The Veteran's STRs do not show any evidence of a back injury during his active service. Furthermore, the Veteran and D.V. are laypersons, and they lack the knowledge or expertise necessary to provide a competent opinion regarding the etiology of a lumbar spine disorder, which was first diagnosed three decades after his separation from active service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the statement of D.V. and the opinion of the Veteran have no probative value in the matter. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. As such entitlement to service connection for a lumbar spine disability is denied. Bilateral Hearing Loss The Veteran asserted that his bilateral hearing loss was incurred during his active service. He reported that he sensed some hearing loss at the time of his separation from active service. He reported that he worked on and around loud jet and turbo prop aircraft engines without proper hearing protection. He reported living on ships with constant loud noises and vibrations. Finally, he reported that he was exposed to weapon explosions during his active service. For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. There is no evidence in the record showing that the Veteran had hearing loss during his active duty service. At his July 1966 entrance physical, audiometry puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 x 10 LEFT 10 15 10 x 15 Audiometry testing in August 1968, audiometry puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 15 15 LEFT 5 5 15 15 20 At the Veteran's August 1970 separation physical, audiometry testing was not conducted. On November 1970 VA examination, the Veteran reported that his hearing was poor. On examination, the examiner indicated that no hearing loss was noted. The Veteran's STRs from his reserve service show that in September 1980, audiometry puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 15 15 LEFT 10 15 15 15 20 In September 1987, the Veteran denied having any hearing loss. Audiometry puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 20 LEFT 15 20 20 15 15 In September 1990, the Veteran indicated that he did not know if he had hearing loss. Audiometry puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 20 25 LEFT 15 20 20 20 20 In June 1994, the Veteran indicated that he did not know if he had hearing loss. Audiometry puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 25 LEFT 15 20 20 15 15 In June 1998, the Veteran indicated that he did not know if he had hearing loss. Audiometry puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 35 LEFT 15 20 20 15 15 The Veteran's post service medical records do not contain any audiometry test results showing he had hearing loss in either ear. However, in June 2015, he was diagnosed with bilateral hearing loss. Audiometry testing on July 2016 VA examination showed puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 30 55 70 LEFT 35 25 45 50 70 The Veteran's speech discrimination (by Maryland CNC list) was 88 percent in the right ear and 88 percent in the left ear. Accordingly, the Veteran had hearing loss for VA purposes. The examiner found that the Veteran's hearing loss does not impact his ordinary conditions of daily life including his ability to work. The examiner opined that the Veteran's bilateral hearing loss was less likely than not due to the Veteran's active service. The examiner noted no permanent positive threshold shifts in-service. The examiner reported that the Veteran's STRs showed normal hearing during his active service. Audiometry testing on February 2021 VA examination showed puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 45 30 40 60 70 LEFT 45 35 60 60 65 The Veteran's speech discrimination (by Maryland CNC list) was 68 percent in the right ear and 74 percent in the left ear. The examiner noted bilateral sensorineural hearing loss. The examiner noted that the Veteran's hearing loss impacts his ordinary conditions of daily life, including his ability to work in that the Veteran describes speech as lacking clarity and often has to ask others to have things repeated. The examiner opined that the Veteran's bilateral hearing loss was less likely than not due to his active service. The examiner reported that the Veteran's STRs did not show hearing loss or significant changes in hearing thresholds during his active service. The examiner reported that based on the current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. The examiner concluded that based on audiometry testing during through 1990 that showed normal hearing, there was no evidence that the Veteran's current hearing loss was due to his active service, to include any noise exposure. As such the examiner found that based on the objective data, there was no evidence that the Veteran's current hearing loss was caused by, or a result of his military service, including noise exposure. It is not in dispute that the Veteran now has a bilateral hearing loss disability (as defined in 3.385), as such disability was found on VA examinations. What remains for consideration is whether or not the Veteran's current bilateral hearing loss is etiologically related to his service, which is a medical question. The evidence shows that the Veteran did not have a hearing loss disability in service, and that bilateral hearing loss was not manifested to a compensable degree within a year following his discharge from service. Accordingly, service connection for the current bilateral hearing loss on the basis that such became manifest in service, and persisted, is not warranted. Furthermore, as bilateral hearing loss was not shown to have been manifested in service or in the first post service year, the chronic disease presumptive provisions of 38 U.S.C. §§ 1112, 1137 and 38 C.F.R. §§ 3.307, 3.309 do not apply. The Board has also considered whether service connection for bilateral hearing loss based on continuity of symptomatology is warranted, but continuity of symptomatology was not demonstrated by the evidence in the record. In fact, audiometry testing from the Veteran's active service through his reserve service in June 1998 did not show hearing loss for VA purposes. The first evidence of bilateral hearing loss in the record is not until the audiometry testing at the July 2016 VA examination. Therefore, the Board finds that service connection for bilateral hearing loss based on continuity of symptomatology is not warranted. The preponderance of the evidence is also against a finding that the Veteran's current bilateral hearing loss may otherwise be etiologically related to his service. Regarding the dispositive factor of a nexus between the current bilateral hearing loss and service/exposure to noise therein, the Board finds the February 2021 VA examination report most probative. The report reflects close review of the Veteran's claims file and includes rationale that cites to accurate factual data and medical literature. The Veteran has not submitted any competent medical evidence showing that his bilateral hearing loss was due to his active service. While he is competent to observe his perceived diminished hearing acuity, under governing regulation, he is not competent to establish the etiology of his bilateral hearing loss as this is a medical question that is beyond the scope of common knowledge, and requires medical expertise. Here, the only medical evidence in the record that directly addresses that question is the opinion of the February 2021 VA examiner (against the claim). The opinion reflects familiarity with the accurate factual record and the opinion is based on information elicited directly from the Veteran and cites to supporting clinical data and medical principles. The VA examiner explained that the Veteran's reported bilateral hearing loss was less likely than not due to his active service, to include any military noise exposure. The preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss is etiologically related to his service, to include any military noise exposure. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. REASONS FOR REMAND Regarding the Veteran's service-connection claim for a heart disorder, he asserted that he was exposed to herbicide agents during his active service. He reported in his August 2017 notice of disagreement that he was sent to Da Nang Harbor to repair an aircraft in order for it to be able to fly back to the aircraft carrier. The Veteran's service records show that he was stationed aboard the U.S.S. Kitty Hawk and the U.S.S. Forrestal during his active service in the waters near the Republic of Vietnam. In a May 2020 Board decision, the Board directed the AOJ to conduct any necessary development in order to confirm whether the U.S.S. Kitty Hawk or the U.S.S. Forrestal was within 12 nautical miles of the Republic of Vietnam. While this development was conducted and it was determined that neither of the ships were within 12 nautical miles of the Republic of Vietnam, unfortunately, no development was conducted in order to verify if the Veteran was sent to Da Nang Harbor in the Republic of Vietnam in order to repair an aircraft. As such, a remand is necessary to attempt to verify the Veteran's reported orders that sent him to Da Nang Harbor. Regarding the Veteran's service connection claim for hypertension, he asserted that his hypertension was also due to herbicide agent exposure. A November 2018 National Academy of Sciences (NAS) report upgraded the relationship between hypertension and herbicide exposure from "limited or suggestive" to "sufficient," indicating that there was "enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. Accordingly, if the Veteran is found to have presumptive herbicide agent exposure, then, and only then, should he be afforded a VA examination to determine if his hypertension was etiologically related to his presumed herbicide agent exposure. The matters are REMANDED for the following: 1. Conduct any development determined to be warranted to verify the Veteran's reported history of being sent to Da Nang Harbor to repair an aircraft. All efforts at such verification should be documented. 2. If the Veteran is found to have presumptive herbicide agent exposure, then arrange for the Veteran's claims file to be forwarded to an appropriate clinician for review and an advisory medical opinion regarding the etiology of his hypertension. [If an examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] On review of the record, the consulting provider should: Identify the likely etiology for the Veteran's hypertension. Is it at least as likely as not (a 50 percent or greater probability) that it is etiologically related to the Veteran's active service, to include any presumed herbicide agent exposure? The rationale provided must address applicability of the November 2018 NAS finding upgrading the relationship between hypertension and herbicide agent exposure from "limited or suggestive" to "sufficient," indicating that there was "enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. See National Academies of Sciences, Engineering, and Medicine, Veterans and Agent Orange: Update 11 (2018). [https://www.nap.edu/read/25137/chapter/12]. K.R. Kardian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.