Citation Nr: 21040701 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-35 325 DATE: July 6, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a present low back disability is etiologically related to the Veteran's service. 2. The Veteran's bilateral hearing loss began in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1972 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues of service connection for low back disability, vertigo, and bilateral hearing loss, in November 2018 for further development. The RO granted service connection for vertigo in January 2020. Therefore, the issue of service connection for vertigo is no longer under the Board's jurisdiction. Moreover, the service connection claims for low back disability and hearing loss were remanded to obtain private treatment records and VA examinations. The outstanding treatment records were obtained and medical examinations were conducted. Accordingly, there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Certain chronic diseases which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Lower back disability. The Veteran contends that he is entitled to service connection for a lower back disability as the condition started in service. Service treatment records reveal that the Veteran reported back pain in August 1978 after a basketball injury, as well as June 1988. The Veteran was afforded a VA examination in December 2019 and diagnosed with degenerative arthritis of the spine. The examiner reviewed the service treatment records, to include the in-service reports of back pain. He noted that the Veteran was treated for a muscle pull during service after falling while playing basketball in August 1978. Then, in 1988, the service treatment records revealed a report of lower back pain that was assessed as a strain. The examiner opined that it was less likely than not that the Veteran's currently diagnosed back disability had its onset in service or is otherwise related to service. The examiner found it significant that although the Veteran had two reports of back pain in service, there were no additional treatment records showing any immediate follow up consultations regarding the same lower back condition. The examiner additionally noted that the claims file did not reveal evidence that a back condition manifested within a compensable degree within one year. Rather, the examiner noted that the Veteran had 14 years of civilian work that required bending, stooping, working in cramped spaces, and carrying and lifting heavy equipment. He noted that the 2015 private treatment record included a diagnosis of lumbar degenerative disc disease and lumbar spondylosis. These diagnoses favor acute and transitory lumbar strain condition during service that was treated adequately. He found no evidence that the in-service conditions developed into a chronic compensable lower back condition. Significantly, the Veteran was able to have a rigorous civilian occupation for 14 years. His 2015 diagnoses of degenerative disc disease and degenerative joint disease are compatible with age as both conditions are degenerative in nature. The examiner opined that doing rigorous work for 14 years as a civilian under more advanced age is the more likely cause of the Veteran's currently diagnosed back disability. The Board finds this medical opinion to be highly probative as the examiner reviewed the Veteran's service and post service medical records and provided a thorough rationale to support his conclusion. In order to establish service connection, one must show that there is evidence of a current disability, evidence of an in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in service disease or injury and present disability. Here, the Veteran experienced back pain during service and he has a current disability. Thus, the dispositive question is whether the in-service back pain is related to his current back disability. The examiner found that the evidence of record does not support a nexus between the Veteran's in-service back pain and the Veteran's current lumbar spine diagnosis. In other words, the Veteran's back pain recorded in his service treatment records are not etiologically related to the Veteran's currently diagnosed lumbar spine disability. The Board has sympathetically reviewed all the evidence of record. The Board has weighed the evidence and finds that the December 2019 VA examiner to be highly credible and competent to provide an opinion as he is an orthopedic surgeon and the evidence to be highly probative. There was no other evidence submitted by the Veteran in support of his claim regarding symptoms or additional information regarding on going treatment in and since service. The Board has not found any additional medical records within the Veteran's claims file that would indicate that the Veteran received ongoing treatment for his fall in 1978 or ongoing treatment for the pain reported in 1988. The Veteran's records did not refer to any treatment for back pain until his diagnosis in 2015. His private treatment records do not include a medical nexus opinion relating the back pain to service. Significantly, the 2019 treatment record states the Veteran reported that the back pain began five years ago with radiating pain. This is supported by the Veteran's service treatment records that reveal that medical examinations and reports of medical history conducted after the Veteran's in-service injuries do not include reports of back pain. See October 1982 and November 1992 report of medical history and examination reports. Furthermore, the Veteran did engage in work that was physically demanding after discharge. The Board acknowledges the Veteran's contention that the back pain began in service. Although the Veteran is competent to report pain that is within his lay observation, such as back pain, he does not have the required medical expertise to relate in-service back pain to his currently diagnosed lumbar spine disability. As such, the Board finds that a preponderance of the evidence is against a finding that events in service, including treatment received for low back pain, caused the Veteran's current low back disability. As such, there is no doubt to be resolved and service connection for a low back disability is not warranted. Bilateral Hearing Loss. Here, the Veteran contends that his bilateral hearing loss began in service. Service treatment records reveal that the Veteran served as a mechanic. Accordingly, noise exposure during service is conceded. He was afforded a VA examination in December 2019. The examiner revealed that the Veteran had a bilateral hearing loss disability. The examiner opined that his hearing loss was less likely than not related to service because hearing loss was already present prior to service. The Board finds this medical opinion to be inadequate. Initially, the Board notes that the Veteran's left ear hearing was sound upon entry in service as the Veteran did not have a hearing loss disability pursuant to VA regulations at that time. Moreover, the VA examiner did not consider the in-service threshold shifts and the finding of a hearing loss disability of the left ear in May 1974. Thus, this medical opinion is afforded no probative value. What remains, without the December 2019 medical opinion, is the Veteran's contention that his hearing loss began during service. This is supported by the service treatment records which reveal an in-service May 1974 hearing loss disability of the left ear. Moreover, threshold shifts were noted in the right ear from November 1972 to January 1976 and from February 1985 to January 1988. After resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.