Citation Nr: 21040380 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 20-08 680A DATE: July 3, 2021 ORDER Entitlement to service connection for a lower back condition, claimed as lower back arthritis, is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a current lower back condition that began during active service or within the first post service year, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a lower back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 to May 1982. This matter is on appeal from a March 2018 rating decision. The Board notes that on March 16, 2020, the Veteran submitted both a VA Form 9 request to continue his appeal in the legacy (non-modernized) review system as well as a VA Form 10182 requesting to have his appeal docketed at the Board in the modernized review system, created by the Appeals Modernization Act. As the Veteran could only select one appeal system, the Board sent a clarification letter to the Veteran. He was advised that the Board could not docket his VA Form 10182 request for review in the modernized system unless he affirmatively responded, choosing to opt-in the modernized review system. Also, if he did not submit the requested response, his VA Form 10182 would not be processed, and the Board could not review his appeal in the modernized review system. He was informed that if the Board did not hear from him within 60 days, it would assume that he wished to continue his appeal in the legacy (non-modernized) system. As the Veteran did not respond, his appeal will continue in the legacy system. The Board observes that on his March 2020 VA Form 9, the Veteran indicated that he experiences pain in his lower extremities, sleep apnea nad posttraumatic stress disorder (PTSD) due to an in-service helicopter crash. The Board does not have jurisdiction over these matters, as they have not yet been adjudicated by the agency of original jurisdiction (AOJ) in the first instance. The Veteran is invited to initiate compensation claims for these disabilities by filing the appropriate form prescribed by the Secretary. Entitlement to service connection for a lower back condition, claimed as lower back arthritis, is denied. The Veteran contends that his lower back condition is the result of injury sustained in a hard helicopter landing during service. The Veteran contends that he was able to get out of the helicopter and walk away from the crash, but his lower back was sore, and he went to see a nurse and was given pain pills. He claims that he has had chronic lower back problems and pain ever since the incident and that it has limited his activities. 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). Certain chronic diseases, such as arthritis, may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.309(a) if a disease is not shown to be chronic during service or the one-year presumptive period, then service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). VA must consider all information and lay and medical evidence of record in a case and make appropriate determinations as to competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); 38 C.F.R. § 3.303. When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In assessing whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. The Board finds that the competent, credible, and most probative evidence weighs against finding that the Veteran suffered an injury to his low back at any point during his active duty service. The Veteran's DD Form 214 shows that the Veteran had a military occupation specialty as observation/scout helicopter repairer. The Veteran's medical examination at enlistment identified no defects relating to his low back. See February 1979 Report of Medical Examination. The Veteran's service treatment records (STRs) are silent for complaint, assessment, or treatment of any low back conditions. An October 1980 statement of medical examination and duty status showed that the Veteran was involved in a motorcycle accident in July 1980, but his injury was reported as an abrasion to right hand and right arm only. In February 1981, the Veteran reported that he injured his right foot and left knee in a motorcycle accident. The assessment was bruised foot. In October 1981, the Veteran reported that he was in an automobile accident and sustained a laceration to the back of his head. He had complaints of stiffness to his right hand, left leg, and left shoulder, but nothing specific to the back. Crucially, on his March 1982 Report of Medical History upon separation from service, while the Veteran did report a history of symptoms such as stomach, liver or intestinal trouble, hay fever and broken bones, the Veteran specifically denied ever having or currently having swollen or painful joints; arthritis, rheumatism, or bursitis; a bone, joint, or other deformity; or recurrent back pain. In addition, on the back of the form, the Veteran was provided an opportunity to report any illness or injury other than those already noted, but the Veteran did not provide a response. Upon physical examination at separation, no injuries or complaints were noted regarding the Veteran's low back, and a clinical evaluation of the spine and other musculoskeletal systems were marked as "normal." See March 1982 Report of Medical Examination. The evidence of record does not contain contemporaneous complaint, assessment, or treatment of any of the claimed conditions within a year of the Veteran's discharge in March 1982. The first indication that the Veteran had a back condition was when he filed his claim for disability compensation in January 2018, which was almost 36 years after service. The Veteran has not submitted or asked VA to obtain on his behalf any medical records indicating that he has a current lower back condition. In February 2018, the AOJ searched to find any VA treatment records, but it appeared that the Veteran did not receive any medical treatment by VA. The Board finds the service treatment records as outlined above to be competent, credible, and probative evidence weighing against the Veteran's current report that he injured his back in service, and experienced residual back pain during and since service. While the Veteran is competent to report his subjective observations of longstanding back pain following an in-service back injury, the Board finds his reports are largely not credible due to inconsistency with other evidence in the record. As outlined above, the Veteran denied back pain upon separation from service, did not disclose a back injury when prompted on his Report of Medical History upon separation from service, received a normal clinical evaluation of the spine at separation from service, and identified or submitted no treatment reports or lay statements from family or friends supportive of a finding that the Veteran has had a back symptoms for more than three decades after his release from service. Such details were only shared in conjunction with his claims for VA benefits decades after service. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a veteran). The Board acknowledges that the Veteran has not been provided VA medical examinations addressing the nature and etiology of the Veteran's claimed back condition. VA must provide an examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i) (2018). In this case, there is competent lay evidence of symptoms back pain and limitation of activities, as described by the Veteran. However, as explained, the Board finds that there is not credible evidence that the Veteran suffered physical injury to his back during his active service, or experienced back pain during and since service to the present day. As the evidence weighs against a finding that an in-service injury actually occurred, the AOJ did not fail to comply with the duty to assist, and a remand for VA examination or opinion is not warranted. Having fully considered the evidence of record, the Board concludes that while the Veteran has competently described experiencing a current low back condition manifested by pain and limitation of activities, the preponderance of the credible and probative evidence is against finding that any low back condition began during active service, within the first post service year, or is otherwise related to an in-service injury, event, or disease. As such, the benefit of the doubt rule does not apply, and the Veteran's claim of entitlement to a lower back condition is denied. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. (Continued on Next Page) REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In a March 2018 VA hearing loss examination, the examiner found that the Veteran's hearing loss was not caused by or a result of an event in military service. The examiner conceded acknowledged that the Veteran's entrance examination showed normal hearing, and his separation examination showed a mild hearing loss at 500 Hz for the left ear that was not consistent with noise induced hearing loss. Although the examiner reported that the auditory damage and hearing loss were not based on noise alone, the examiner did not clarify whether or not the Veteran's noise exposure combined with other factors, including in-service treatment in July 1980 for otitis media could have caused his current disability. Therefore, the March 2018 VA examination is inadequate, and an addendum opinion must be obtained. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician to determine the nature, and etiology of the Veteran's right and/or left ear hearing loss. The examiner must opine whether the Veteran's right or left ear hearing loss at least as likely as not had onset in, or is otherwise related to an in-service injury, event, or disease, including in-service noise exposure, otitis media in July 1980, and/or left ear hearing loss at 500 Hz documented on the separation examination. A complete rationale must be provided for all opinions and must be based on consideration of all pertinent lay and medical evidence. 2. Then readjudicate the issue on appeal. If the benefit sought remains denied, send the Veteran a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Crohe, 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.