Citation Nr: 21042731 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-48 970 DATE: July 13, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for a low back disorder is denied. Service connection for a neck disorder is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran had active duty from October 1971 to October 1973. 2. A pre-existing disability of bilateral hearing loss was not aggravated by service. 3. The Veteran sustained a low back injury in service; the symptoms were not shown to be chronic; a current low back disorder is not causally or etiologically related to service. 4. The Veteran did not sustain a neck disorder in service; a current neck disorder, diagnosed as status/post cervical fusion, is not causally or etiologically related to service. 5. The Veteran is not service connected for any disabilities. CONCLUSIONS OF LAW 1. Bilateral hearing was not aggravated by service. 38 U.S.C. § 1110, 1153, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.385 (2020). 2. A low back disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 3. A neck disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020) 4. The criteria a TDIU have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Bilateral Hearing Loss In addition to the laws and regulations outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a disorder is noted, the question is whether it was aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" pre-existing condition. 38 U.S.C. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The Veteran claims that bilateral hearing loss was caused by service; however, there is evidence that bilateral hearing loss preexisted service. Specifically, a review of the service treatment records (STRs) reveal that his entrance examination included an audiogram with hearing loss in each ear sufficiently impaired to constitute bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. As such, a pre-existing disability is noted. On the question of whether hearing loss was aggravated by service, the STRs include April 1972 and July 1973 hearing conservation audiological evaluations, as well as an audiogram associated with the July 1973 separation examination. When compared to the entrance examination, the Veteran's hearing did not worsen at any decibel level. Rather, the hearing maintained the same loss or improved at every measured decibel level. Additionally, the Veteran made no lay complaints either in the STRs or during the period of appeal that his hearing became worse during service, but rather became so six months afterwards. Finally, an April 2018 VA examiner found it was less likely than not that his bilateral hearing loss was caused by or aggravated by service because hearing in each ear improved during service such that it was within normal limits upon separation. As the medical evidence does not reflect an increase in disability during service, there was no aggravation of a pre-existing hearing loss disability. Because the Veteran's pre-existing bilateral hearing loss was not aggravated by service, the medical evidence does not support service connection. Low Back Disorder Turning to the evidence, the first element of service connection a current back disorder is met, as the Veteran has been treated for and diagnosed with low back disorders. May 2000 VA medical records show he was diagnosed with low back pain. Additionally, he relayed to the physician and during his April 2021 Board hearing that in 1989 MRIs and other diagnostic studies of his low back revealed disc disease in three discs in his low back. October 2007 VA medical records show a diagnosis of back disorder, not otherwise specified (NOS). The 1989 private medical records, are however, not in the claims file, as the Regional Office (RO) sent a December 2017 development letter to the Veteran with VA Forms 21-4142 and 21-4142a to authorize the RO to attempt and obtain outstanding private treatment records. He did not return these forms, nor did he submit the private medical records himself. However, he has credibly claimed recurrent back pain that causes functional impairment, and been given a diagnosis of a low back disorder NOS. He is additionally competent to relay what was told to him by the physician in 1989. As such, a current disability is found, and the first element is met. Next, the second element an in-service incurrence is also met, as the Veteran injured his back while in service. May 1972 STRs show treatment for an injured thoracic spine after he fell from a truck onto a rocky road. A physician diagnosed muscular pain secondary to blunt trauma, rule/out fracture of post process of thoracic vertebra. Therefore, the second element is met. As to a medical nexus, no medical professional has associated the Veteran's low back disorder with service. He told a May 2000 VA physician that his low back pain began after he hurt his neck and had surgery in 1989. He related that he originally hurt his low back in 1977. As he described the same exact incident that occurred in service and denied during his April 2021 Board hearing that he injured in any 1977 incident after service, it is probable that he gave the physician the incorrect date when describing the in-service incident. Additionally, the Veteran stated at the April 2021 Board hearing that physicians around the time he injured his neck, presumably in 1989, asked if he had been either a football player or had been in an automobile accident given the results of low back diagnostic tests. Nevertheless, as he has relayed in May 2000, his back pain did not begin until 1989, over fifteen years after separation from service, and no medical professional has found a connection between the current disorders and service. As such, the medical evidence does not support service connection. Neck Disorder In his initial claim for service connection, the Veteran indicated that a neck disorder was caused by service. Turning to the evidence, the first element of service connection a current disability is met, as May 2000 VA treatment records show a diagnosis of neck pain status/post 1989 cervical fusion. This diagnosis is reflected throughout his VA treatment records. As discussed above, the private medical records associated with this surgery are not available for the review; however, the available records are sufficient to show that the first element is met. In contrast, the second element an in-service incurrence is not met, as the Veteran's STRs fail to show any diagnosis of, treatment for, or complaints of neck pain or a neck disorder. He reiterated during the April 2021 Board hearing that no injury occurred relating to his neck in service, and that his neck disorder was not related to service in any way. As such, the second element is not met, and the medical evidence does not support direct service connection. The Board has considered the Veteran's lay statements that that hearing loss and a low back disorder were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer opinions as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and the examination report obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran has claimed he is unable to work due to bilateral hearing loss, a low back disorder, and a neck disorder. However, he is not service connected for any of these three, or any other, medical disorders. As a TDIU is assessed based on the functional impairment of service-connected disabilities alone, it must be denied here as a matter of law. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, 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.