Citation Nr: 21040230 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-28 205 DATE: July 2, 2021 ORDER Entitlement to service connection for a low back disorder, to include intervertebral disc syndrome and lumbosacral strain, is denied. Entitlement to service connection for a right leg disorder is denied. REMANDED Entitlement to a compensable initial rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's current low back disorder first developed many years after discharge from service and is not related to service, including the low back complaints noted during service. 2. The Veteran's right leg disorder first developed many years after discharge from service and is not related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder, to include intervertebral disc syndrome and lumbosacral strain, are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for a right leg disorder are not met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to June 1980. Service Connection 1. Entitlement to service connection for intervertebral disc syndrome and lumbosacral strain. The Veteran submitted his claim for service connection for a low back disorder in June 2015. The Veteran testified in January 2021 that he injured his back in service when he fell off a personnel carrier. He stated that he received treatment for his back injury while in service. He reported that he had had low back pain ever since service and that it had gradually gotten worse. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of a veteran's discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no presumed service connection because arthritis of the lumbar spine was not medically diagnosed within one year of discharge. The question for the Board is whether the Veteran has a current low back disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment records (STR) show that in August 1979 the Veteran complained of chronic low back pain from an old football injury. The assessment was low back pain. He later reported that he hurt his back while trying to lift a chair. In February 1980 the Veteran again complained of lower back pain. He reported that he had had lower back pain problems for several years. He stated that he had had a large rock thrown on his back three years previously and was hospitalized for three days. In March 1980 the Veteran filled out a Report of Medical History (RMH) in preparation for discharge from service. The Veteran reported recurrent back pain. No low back disability was noted on clinical examination for discharge from service in March 1980. VA treatment records dated from May 2003 to March 2015 reveal treatment for various complaints, but reveal no complaints of back pain. In March 2004 the Veteran denied having any back pain. The earliest complaint of post service back pain in the record was in April 2015. The April 2015 VA treatment record notes that the Veteran was seen for chronic low back pain with radiation down the right leg. The Veteran denied trauma. X-rays in May 2015 revealed mild dextroscoliosis and multilevel degenerative disc disease. In August 2016 the Veteran reported a several year history of pain in the back that radiated down the right leg. In December 2017 the Veteran reported that he had chronic back pain from a truck accident in a personnel carrier as a passenger. On VA fee basis examination in October 2015, the examiner diagnosed the Veteran as having lumbosacral strain and intervertebral disc syndrome. The physician examined the Veteran and reviewed the Veteran's medical records. He noted the Veteran's complaints of lower back pain during service and the Veteran's report of recurrent back pain on separation examination. The physician opined that the Veteran's current low back disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The physician pointed out that there was about a 35-year gap between service and the diagnoses of back disability. To the extent that the Veteran asserts that he has a current lumbar spine disability that is related to an in-service back injury, he is not competent to offer an opinion on a matter requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007). The etiology of the back disorder requires interpretation of medical records and testing as well as evaluation of physical examinations. As a lay person, the Veteran is not qualified to be able to provide competent evidence on the etiology of the back disorder. The Board does not find the Veteran's report of hurting his back when falling from a personnel carrier during service, or his report of continuous back pain since service to be credible. Although the STRs do contain complaints of back pain, the contemporary medical evidence does not show that the back pain was due to falling off a personnel carrier. During service the Veteran attributed his back pain to a football injury, to lifting a chair, and to being hit by a thrown rock. Furthermore, the Veteran's reports of back pain ever since service also lack credibility. The post service medical records prior to April 2015 show complaints and treatment for other disabilities but not for back pain. In additions, in March 2004, the Veteran denied having back pain. Furthermore, in April 2015, the first post service record of back pain, the Veteran denied trauma to the back and in August 2016 he indicated that he had only had the back pain for several years. Thus, the more recent assertions by the Veteran of a personnel carrier injury and back pain ever since service, are contradicted by the record which indicates that the Veteran's current low back complaints are of more recent origin, rather than related to service. The Board concludes that, although the Veteran has current diagnoses of lumbosacral strain and intervertebral disc syndrome, and although the Veteran experienced back pain during service, the preponderance of the evidence is against finding that the current low back disorders began during active service, or are otherwise related to an in-service injury, event, or disease. The Board notes that the October 2015 VA fee basis medical examiner examined the Veteran, reviewed the Veteran's STR, and post service medical records, and provided an opinion that the Veteran's current back complaints are unrelated to service. There are no medical opinions to the contrary and the post service medical records and the Veteran's contemporaneous statements indicating recent origin support the negative opinion. Consequently, the Board finds that the greater weight of the evidence and the most probative evidence is against the Veteran's claim. Accordingly, the Veteran's claim for service connection for a low back disorder, to include intervertebral disc syndrome and lumbosacral strain, is denied. 2. Entitlement to service connection for a right leg disorder. The Veteran submitted his claim for service connection for a right leg disorder in June 2015. At his hearing the Veteran asserted that he is entitled to service connection for his right leg disorder because it is caused by his low back disorder. Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). There were no complaints regarding the right leg during service or for many years after discharge from service. VA treatment records from April 2015 show complaints of chronic low back pain with radiation down the right leg. The evidence does not show, and the Veteran does not claim, that his right leg disorder began during service, within a year of discharge from service, or is otherwise directly related to service. Accordingly, service connection for a right leg disorder on a direct or a presumptive basis is not warranted. The Board has considered the Veteran's assertions that his right leg disorder is caused by his low back disorder and his report that a physician told him that his right leg disorder is caused by his low back disorder. However, the fact remains that service connection is not in effect for the Veteran's low back disorder. Secondary service connection may only be granted when a disability is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Veteran's only service-connected disabilities are tinnitus and hearing loss and the Veteran has not claimed, and the record does not indicate, that his right leg disorder is caused or aggravated by these disabilities. Consequently, service connection for a right leg disorder is not warranted on a secondary basis. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim and service connection for a right leg disorder is not warranted on any basis. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an increased rating for bilateral hearing loss is remanded. The Veteran's claim for an initial compensable rating for bilateral hearing loss must be remanded because there is evidence that the Veteran's hearing loss has increased in severity since he was provided a VA hearing loss examination in October 2015. That examination report shows that the Veteran's average puretone thresholds were 32.5 decibels in the right ear and 35 decibels in the left ear. A February 2021 private audiometric examination report indicates more severe hearing loss than shown in October 2015. The February 2021 puretone average thresholds at 1,000, 2,000, 3000 and 4,000 Hertz were 56 decibels in the right ear and 52.5 decibels in the left ear. As this report indicates that the Veteran's hearing loss disability has increased in severity since October 2015, the Veteran must be provided a new VA audiometric examination to determine the current severity of the Veteran's bilateral hearing loss for rating purposes. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board is unable to adjudicate the Veteran's appropriate hearing loss disability rating based on December 2020 and February 2021 private audiometric reports submitted by the Veteran as they do not indicate that word recognition testing was done using the Maryland CNC word list as required by 38 C.F.R. § 4.85(a). The agency of original jurisdiction (AOJ) should contact the private clinicians to determine whether the Maryland CNC word list was used in evaluating the Veteran's speech recognition scores. The matters are REMANDED for the following action: 1. Contact the clinicians who performed the December 2020 and February 2021 private audiological examinations and ask them whether they used the Maryland CNC word list to evaluate the Veteran's word recognition scores. Document all efforts made to contact the clinicians in the claim file. 2. Afford the Veteran an audiological examination to determine the current severity of his service-connected bilateral hearing loss. The examiner is also requested to fully describe the functional effects caused by the Veteran's hearing loss. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.