Citation Nr: 21032037 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-13 521 DATE: May 25, 2021 ORDER 1. Entitlement to an initial compensable rating for bilateral hearing loss is denied. 2. Entitlement to service connection for a lumbar spine disability, to include lumbar spine strain, lumbar spondylosis, and degenerative arthritis of the spine, is denied. FINDINGS OF FACT 1. The Veteran's hearing loss disability has been productive of a puretone threshold average of 45 decibels (dB) in the right ear and 44 dB in the left ear and speech recognition ability using the Maryland CNC Test of 84 percent in the right ear and 88 percent in the left ear. 2. The Veteran's lumbar spine disability did not have its onset in service, arthritis was not manifested to a compensable degree within one year of service discharge, and the lumbar spine disability is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for service connection for a lumbar spine disability, to include lumbar spine strain, lumbar spondylosis, and degenerative arthritis of the spine, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 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 from June 1981 to October 1985, from February 1991 to April 1991, from October 2001 to February 2003, from April 2004 to July 2004, and from August 2004 to April 2005. In March 2020, the Veteran testified at an in-person hearing before the undersigned Veterans Law Judge. In May 2020, the Board remanded the claims for an increased rating for bilateral hearing loss and service connection for a lumbar spine disability for a new VA examination and an addendum medical opinion. The Board finds there was substantial compliance with this development. The case now returns to the Board for further appellate review. Increased Rating 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. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of puretone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R.§ 4.85(c). 1. Entitlement to an initial compensable rating for bilateral hearing loss. In a January 2015 rating decision, service connection for bilateral hearing loss was granted with a noncompensable rating, effective May 24, 2013, the date of the claim for service connection. The Veteran testified his hearing has worsened since his last VA examination in September 2014, which is why the Board remanded the claim to provide the Veteran with an updated hearing test. The Veteran underwent a VA audiological examination in September 2014, during which his audiogram showed that the puretone thresholds, in dB, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 40 60 65 45 LEFT 15 45 60 55 44 Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 84 percent in the right ear and 88 percent in the left ear. The Veteran stated that the functional impact of his hearing loss was that he was unable to hear people correctly when they spoke to him. The Veteran underwent a VA audiological examination in September 2020, during which his audiogram showed that the puretone thresholds, in dB, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 30 55 60 60 51.25 LEFT 25 50 60 65 50 Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 95 percent in the right ear and 94 percent in the left ear. The Veteran stated that the functional impact of his hearing loss was that his wife gets frustrated at home because she has to report herself, and he doesn't always hear things correctly. The Board finds the preponderance of the evidence is against the Veteran's bilateral hearing loss disability warranting a compensable disability rating throughout the appeal period. The September 2014 VA examination shows the right ear had a puretone threshold average of 45 dB and speech discrimination of 84 percent which corresponds to a designation of II in Table VI, 38 C.F.R. § 4.85. Similarly, the left ear had a puretone average of 44 dB and speech discrimination of 88 percent, it receives a designation of II. See id. The intersection of designations II and II on Table VII establishes that the Veteran's hearing loss disability falls into a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100. The September 2020 VA examination shows the right ear had a puretone threshold average of 51 dB and speech discrimination of 95 percent which corresponds to a designation of I in Table VI, 38 C.F.R. § 4.85. Similarly, the left ear had a puretone average of 50 dB and speech discrimination of 94 percent, it receives a designation of I. See id. The intersection of designations I and I on Table VII establishes that the Veteran's hearing loss disability falls into a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100. Thus, the two examinations performed during the appeal and six years apart show that the Veteran's bilateral hearing loss disability does not warrant a compensable rating. Accordingly, the preponderance of the evidence is against a compensable rating for the service-connected bilateral hearing loss disability. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more of active service, certain chronic diseases, such as arthritis, that become manifest to a degree of 10 percent or more within one year after the date of separation from such service, 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, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 2. Entitlement to service connection for a lumbar spine disability, to include lumbar spine strain, lumbar spondylosis, and degenerative arthritis of the spine. The Veteran testified he has experienced back pain and spasms since receiving in-service spinal anesthesia in 1984. He described the spasms sometimes going all the way up his back. He was sent for physical therapy and chiropractic care, but the pain continued. His work required him to ride long distances on convoys, which aggravated his back. In March 2018 Correspondence, the Veteran stated after his surgery, he complained of back pain, and he was told it was a normal side effect. Sometimes pain would radiate down his leg, but doctors refused to help and told him it was normal. The pain has been with him for 34 years. His back pain comes and goes and sometimes he cannot even get out of bed. If he exercises, he has to be very careful or his back will flare-up. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a lumbar spine disability. The reasons follow. As to evidence of a current disability, the evidence shows he has been diagnosed with lumbar spine strain, lumbar spondylosis, and degenerative arthritis of the spine. Therefore, the facts establish that the first element of a service-connection claim is met. As to an in-service disease or injury, the service treatment records (STRs) show that the Veteran received spinal anesthesia when undergoing surgery in February 1984. He was also seen for back pain in October 2004 and a back strain in May 2005. All three of these incidents occurred during a period of active duty. Thus, the facts show that the second element of a service-connection claim is met. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. The Veteran had instances during periods of active duty where he experienced back pain, which was having the spinal anesthesia in February 1984, back sprain in October 2004, and the back strain in May 2005. However, following these instances, which includes in between the instance in 1984 and the subsequent two instances in 2004 and 2005, the Veteran was not experiencing continuing symptoms that would be indicative of an ongoing lumbar spine disability. For example, for more than a 13 year period, Reports of Medical Examination (RMEs) from September 1986, May 1990, February 1995, and December 1999 document the Veteran's spine was clinically evaluated as normal. In Reports of Medical History (RMHs) from February 1995 and December 1999, the Veteran denied a history of wearing a brace or back support and recurrent back pain. This shows that the Veteran did not continue to experience back pain following the spinal anesthesia. A July 2004 Pre-Deployment Health Assessment documented the Veteran marked that he was in very good health. No referrals for further evaluation were made, and he was noted as being deployable. An October 2004 STR shows the Veteran was seen for mid-posterior back pain for two days after a weight-lifting routine three days earlier. On a March 2005 Post-Deployment Health Assessment, the Veteran denied back pain. On an April 2005 Deactivation Records Review, the Veteran reported periodic back spasms. A May 2005 STR shows the Veteran was seen for low back strain which had occurred off and on since October. A June 2005 follow-up note documented the Veteran was diagnosed with lumbago, but he endorsed being pain-free. An undated 2005 physical therapy note documents the Veteran's report of a back injury beginning in October 2004. He sought relief of back spasms. An October 2005 Line of Duty Determination documents the Veteran experienced low back pain while lifting weights during the time he was deployed to Kuwait from September 2004 to March 2005. On the December 2007 Post-Deployment Health Assessment, the Veteran denied having back pain now or developing it during his deployment. The Veteran reported his health was excellent. While the Veteran experienced back pain in 2004 and a back strain in 2005, both during a period of active duty, the back pain resolved itself, which is evidenced by the Veteran reporting that he was pain free thereafter and denying back pain when he completed the December 2007 Post-Deployment Health Assessment. The Board finds that the facts documented in the Reports of Medical Examination, Reports of Medical History, and the Post-Deployment Health Assessment are all highly probative, as they document clinical findings and the Veteran's report of his health contemporaneously with the time periods in question, which facts tend to be highly reliable. In May 2014, a VA examiner provided a negative nexus opinion. The examiner opined that the Veteran's lumbar spine disability is more likely the result of natural aging and long-term wear and not a result of an episode of acute back strain while on active duty. The Board affords the May 2014 medical opinion high probative value because the examiner reviewed the file and an provided opinions that included a rationale that was based on evidence in the file and medical principles. In August 2014, a VA examiner provided a negative nexus opinion. The examiner opined that in May 2014 the Veteran was diagnosed with lumbar spondylosis which is a disease with a clear and specific etiology and diagnosis. Spondylosis results from a complex interplay of multiple factors, including joint integrity, genetic predisposition, local inflammation, mechanical forces, and cellular and biochemical processes and natural aging process. None are due to environmental hazards such as dust, oil well fires, pesticides, infectious diseases, inhalation of solvents, fuel fumes or ultrafine-grain sand, or administration of vaccines. The examiner wrote for this reason, his lumbar spondylosis is unrelated to exposure to environmental hazards experienced during the Gulf War. The Board affords the August 2014 VA medical opinion high probative value because the examiner reviewed the claims file and provided opinions that included a rationale that was based on evidence in the file and medical principles. The November 2020 VA examiner also provided a negative addendum nexus opinion. The examiner opined that STRs did not support a chronic back condition associated with the February 1984 spinal anesthesia. The examiner explained this is supported by a normal spine on the May 1990 RME. The examiner wrote that the 2004 injury was an acute injury without chronic sequelae, where, like most acute injuries, treatment may be necessary though this does not reflect a chronic condition and there are insufficient records following 2005 to support the finding that it was an acute injury. The Board affords the November 2020 VA medical opinion high probative value because the examiner examined the Veteran, reviewed the claims file, and provided opinions that included a rationale that was based on evidence in the file and medical principles. As to presumptive service connection for a chronic disease (here, degenerative arthritis), the Veteran was diagnosed with degenerative arthritis of the spine in May 2014. This finding does not establish arthritis manifesting within one year following a period of active duty. Thus, service connection on a presumptive basis based on a chronic disease is not warranted. While the Veteran believes that the current lumbar spine disability is related to service, he is not competent to offer opinions as to the etiology, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. All three medical opinions obtained in connection with the claim for service connection for a lumbar spine disability are all in agreement that the current lumbar spine disability is not related to an in-service disease or injury. At the present time, there is no competent evidence of a nexus between the lumbar spine disability and service to weigh against the three opinions. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disability, to include lumbar spine strain, lumbar spondylosis, and degenerative arthritis of the spine, as there was a lack of symptoms in the years following service discharge, arthritis was not manifested within one year of service discharge, and a medical professional has found that the post-service lumbar spine disability is not related to service. There is no reasonable doubt to be resolved, and the claim for service connection for a lumbar spine disability is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.