Citation Nr: 21040810 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-36 699 DATE: July 7, 2021 ORDER Service connection for degenerative disc disease (DDD) of the lumbar spine is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran has experienced back pain related to his DDD of the lumbar spine since his separation from service. CONCLUSION OF LAW The criteria for service connection for DDD of the lumbar spine are met. 38 U.S.C. §§ 1110, 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 September 1999 to August 2002 with additional periods of National Guard service This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In September 2019, the Board reopened the claim of service connection for DDD of the lumbar spine and for a bilateral hearing loss disability, and remanded those issues for additional development. Service connection for DDD of the lumbar spine is granted. The Veteran contends that he has suffered back pain in and since service. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). 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, supra. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran has a current diagnosis of DDD of the lumbar spine as evidenced by the February 2008 VA back examination. Arthritis/DDD is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1331. His service treatment records (STRs) confirm that he was seen multiple times for back pain during service. Additionally, his March 2002 separation report of medical history includes a complaint of recurrent back pain whenever the Veteran did physical therapy, gets up from bed, or tries to sit up. While no treatment records exist during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms from his active duty service. The Veteran is competent and credible to report that he experienced symptoms of back pain during that period but did not seek treatment because he could not afford medical treatment. Specifically, in an April 2012 statement and during his August 2019 Board hearing, he stated that he was unable to seek treatment following service due to financial constraints; his spouse confirmed that he had back pain in and since service. In 2008, he began being treated by VA for his complaints of back pain. During his February 2008 VA examination, he reported that his condition existed for eight years (placing it directly in line with his active duty service). His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. While the Veteran is not competent to determine the etiology of his current back disability, he is certainly competent to identify lay observable symptoms such as chronic pain occurring during and since his active service. See Layno, supra. The Board acknowledges the negative opinions in the record that state that the Veteran's back disability is not as likely caused by or a result of an event in military service. See generally February 2008, May 2010, and August 2011 VA examinations. The reasoning provided in each opinion is inadequate and the Board accords them little probative weight. The opinions are based primarily on the fact that there was a gap of five years following service with no complaints of or treatment for a back disability. However, the examiners did not appear to consider the Veteran's lay statements regarding a history of consistent back pain in and since service. Opinions discounting this information are inadequate. In sum, the Veteran has currently diagnosed DDD of the lumbar spine. Moreover, he has competently and credibly described experiencing in-service back pain, which is confirmed by his STRs. In fact, at separation, he continued to complain of recurrent back pain. He and his spouse have competently and credibly reported that he continued to have back pain following service but did not seek treatment for such until years later based on financial constraints. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) (emphasizing that "symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology"). Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise and resolves reasonable doubt in the Veteran's favor. As such service connection for DDD of the lumbar spine is warranted. Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND Entitlement to service connection for a bilateral hearing loss disability is remanded. The September 2019 Board decision noted the Veteran's August 2019 testimony that a physician had diagnosed a perforated tympanic membrane that may be related to noise exposure in service and could be the cause for his hearing loss. The Board remanded this claim for a VA examination; however, the April 2021 VA examiner did not address the Veteran's perforated tympanic membrane, necessitating an additional remand to address this finding. The matter is REMANDED for the following action: 1. Obtain copies of VA treatment records from April 2021 to the present. 2. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received for his bilateral hearing loss disability, to include records from Ear, Nose & Throat Associates of Corpus Christi. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. After the development in #1-2 are completed, schedule the Veteran for an appropriate VA examination (or telehealth interview) to determine the etiology of any bilateral hearing loss disability and his perforated tympanic membrane. The examiner should be provided a copy of the claim file, including all lay statements and private treatment records submitted by the Veteran. A review of the claim file should be noted in any subsequent opinion. Based on review of the record, and interview and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Is it at least as likely as not (50% or greater probability) that the Veteran's left ear perforated central tympanic membrane was incurred in or otherwise related to his active duty service, to include conceded noise exposure based on his military occupational specialty where noise exposure is highly probable? (b) If yes, is it at least as likely as not (50% or greater probability) that the Veteran's (right and/or left ear) hearing loss is caused by his left ear perforated central tympanic membrane? (c) If the answer to (b) is no, is it at least as likely as not (50% or greater probability) that the Veteran's (right and/or left ear) hearing loss is aggravated (i.e., increased in severity beyond its natural progression) by his left ear perforated central tympanic membrane? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. A complete rationale for all opinions rendered must be provided. (CONTINUED ON NEXT PAGE) 4. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.