Citation Nr: 21041498 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-03 283 DATE: July 9, 2021 ORDER Service connection for degenerative changes and collapsing disk, L5-S1, lumbar spine (low back disability) is denied. An initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. A low back disability was not present in service or for years thereafter, and is not etiologically related to service. 2. For the entire period on appeal, the Veteran has had, at worst, Level I hearing in the right and left ears. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to April 1987. In January 2019, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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 Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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 for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107; 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for degenerative changes and collapsing disk, L5-S1, lumbar spine (low back disability) The Veteran contends that he injured his low back lifting boxes of paper and other heavy containers and performing snow removal while in service, and that he has had low back symptoms, including chronic low back pain and decreased range of motion, since that time. See August 2016 Informal Conference Report, December 2019 VA examination report, and July 2020 statement from the Veteran. A low back disability was not diagnosed until many years after service, and there is no competent evidence to establish that any current low back disability is due to any event or incident of the Veteran's period of active duty. Service treatment records are negative for any evidence of a low back disability during active duty or at discharge. Post-service treatment records dated many years after discharge show treatment for low back symptoms and a diagnosis of degenerative changes and collapsing disk, L5-S1 in 2008. See private treatment records from The Neurosurgery Group and Alleghany General Hospital. VA treatment records show a diagnosis of moderate to severe degenerative disc disease of the lumbar spine in March 2015. On VA examination, he was diagnosed with degenerative arthritis of the lumbar spine, intervertebral disc syndrome, and spinal stenosis. However, the evidence does not indicate that the diagnosed low back disability is due to any event or incident of the Veteran's period of active duty. In this regard, the December 2019 VA examination opined that the claimed low back disability was less likely than not incurred in or caused by the claimed in-service, injury, event, or illness. The rationale was that the reported lumbar strain during service was acute only; there is no evidence of care in service; no chronicity of care is documented between 1984-2010 and therefore, a nexus has not been established. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the lack of reports of low back symptoms during active duty or at discharge and the decades-long gap between service and the first notation of low back symptoms, the Board does not find the Veteran's accounts of low back symptoms since service to be credible. As such, the Board finds the December 2019 VA examiner's opinion is supported, and another examination is not necessary. There is no other competent evidence, VA or private, which indicates that the Veteran's low back disability may be related to his active military service. The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that lumbar spine arthritis was initially shown more than one year after the Veteran's discharge from service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a low back disability, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a low back disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that his low back disability is due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed low back disability and his active service or events therein, as it would require medical expertise to say that the current low back disability, identified after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his low back disability. 38 C.F.R. § 3.159 (a)(1), (2) (2019). For the reasons and basis stated above, the Board finds that service connection for a low back disability is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is the against the claim, that doctrine is not applicable. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) is 55 decibels or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In accordance with 38 C.F.R. § §§ 4.1, 4.2 (2019) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities. 2. An initial compensable rating for bilateral hearing loss In a September 2013 rating decision, the RO granted service connection for bilateral hearing loss. A 0 percent (noncompensable) rating was assigned, effective February 29, 2012, based on the results of an August 2013 VA audiological examination. The Veteran has appealed this initial rating. The Veteran underwent a private audiological examination at South Hills E.N.T. Association in January 2010. See private treatment records from South Hills E.N.T. Association submitted in November 2016. The following audiometric findings were reported. Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 10 10 50 60 32.5 Left (db): 15 30 50 55 37.5 Speech audiometry results revealed speech recognition ability of 96 percent in the right and left ears. These values do not meet the criteria of 38 C.F.R. § 4.86 (a) or (b) for an exceptional pattern of hearing impairment. Applying these values to the rating criteria results in a numeric designation of level I in the right and left ears. See 38 C.F.R. § 4.85, Table VI. Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent. As noted above, the Veteran was afforded a VA audiological examination in August 2013. The following audiometric findings were reported: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 15 10 55 60 35 Left (db): 15 40 55 60 42.5 Speech audiometry results revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. These values do not meet the criteria of 38 C.F.R. § 4.86 (a) or (b) for an exceptional pattern of hearing impairment. Applying these values to the rating criteria results in a numeric designation of level I in the right and left ears. See 38 C.F.R. § 4.85, Table VI (2019). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent. The Veteran was afforded another VA audiological examination in November 2016. The following audiometric findings were reported: Hertz (Hz) 1000 2000 3000 4000 Average Right (db): 20 15 45 60 35 Left (db): 15 35 50 55 38.75 Speech audiometry results revealed speech recognition ability of 100 percent in the right and left ears. These values do not meet the criteria of 38 C.F.R. § 4.86 (a) or (b) for an exceptional pattern of hearing impairment. Applying these values to the rating criteria results in a numeric designation of level I in the right and left ears. See 38 C.F.R. § 4.85, Table VI. Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent. The Veteran was afforded another VA audiological examination in December 2019. The following audiometric findings were reported: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 20 15 50 55 35 Left (db): 15 40 55 55 55 Speech audiometry results revealed speech recognition ability of 100 percent in the right and left ears. These values do not meet the criteria of 38 C.F.R. § 4.86 (a) or (b) for an exceptional pattern of hearing impairment. Applying these values to the rating criteria results in a numeric designation of level I in the right and left ears. See 38 C.F.R. § 4.85, Table VI. Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent. Accordingly, the Board finds that, even with consideration of the functional impairment noted on VA examination in August 2013, November 2016 and December 2019, there has been no point during the appeal period when the Veteran's hearing loss disability met or approximated the criteria for a compensable rating. The Board has considered whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The record, however, does not support assigning different percentage disability ratings at any time during the appeal. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.7, 4.21. The Board has also considered other medical evidence of record for this period, including VA and private treatment records. None of these records contains evidence showing that the Veteran's bilateral hearing loss disability is manifested by symptoms that meet the criteria for a compensable rating at any time during the appeal period. Consideration under 38 C.F.R. §§ 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.