Citation Nr: 22013374 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-16 241 DATE: March 9, 2022 ORDER 1. Service connection for bilateral hearing loss is denied. 2. Service connection for a lumbar spine disorder is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is not severe enough to legally count as a disability for VA disability compensation purposes. 2. The Veteran's lumbar spine disorder did not manifest in service or for many years thereafter and is not shown to be related to his service. CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for bilateral hearing loss. 38 U.S.C. § 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria have not been met for service connection for a lumbar spine disorder. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from April 1994 to April 1997. He also had active-duty service with the Army from January 2001 to September 2001. The Veteran had additional service in the Army and Navy Reserves and the Army National Guard. Between April 1997 to October 1998, the Veteran served in the Navy Reserves. The Veteran also served in the Army Reserves from September 2001 to March 2002. Moreover, he served in the Army National Guard from March 2002 to August 2002. Finally, he served in the Army Reserves from August 2002 to October 2004. This matter comes to the Board of Veterans 'Appeals (Board) on appeal from rating decisions from February 1998 and June 2015, which were issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing in April 2021, but he did not attend the hearing or provide any reason for not attending or attempt to reschedule it. As such, the Veteran's request for a Board hearing is considered withdrawn. The case was remanded in June 2021 for additional case development and is now before the Board again. Service Connection Legal Criteria Service connection may be granted for a disability caused by a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). In the absence of evidence of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When determining whether service connection is warranted, the Board must consider statements made by the Veteran or by others with knowledge of the Veteran's disability, provided they are discussing things they are qualified to address. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (explaining that laypersons are qualified to report observable symptoms and medical events but not to provide medical opinions about complex medical questions). 1. Bilateral hearing loss Impaired hearing will be considered a hearing loss disability (for VA disability compensation purposes) when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94%. 38 C.F.R. § 3.385. Factual Background The Veteran contends that service connection is warranted for bilateral hearing loss. An inital June 2015 VA examination showed normal hearing in both ears. A June 2015 VA rating decision denied the Veteran service connection for hearing loss on the basis that he did not have a hearing loss disability for VA purposes. In October 2015 the Veteran filed a Notice of Disagreement (NOD). In that NOD, the Veteran asserted that while he was still in the Navy in 1997, he was told he had hearing loss, and that it would get worse. The Veteran also stated that "now at age 44yrs old and all these years later of working around aircraft I can't have a regular conversation with people because I don't hear them well enough to make out the words." The Veteran also stated, "I feel stupid for saying "Huh or what" many times. I don't hear people calling me." The Veteran also reported his belief that the June 2015 hearing test was inaccurate because the audiologist stopped the test multiple times to tell him to "push the button." The Veteran stated that after a while he stopped pushing the button because all he wanted was to "have a normal conversation without feeling stupid." In Febuary 2019, as part of his normal treatment at a VA medical center, an examiner noted that the Veteran was "negative for hearing loss and tinnitus." An August 2021 hearing examination indicated that the Veteran had normal hearing; in other words, he did not have hearing loss that was severe enough to count as a hearing loss disability (as defined, by law, for VA disability compensation purposes). The auditory threshold results were recorded as follows: 500 1000 2000 3000 4000 CNC RIGHT [5] [5] [5] [10] [10] [] LEFT [10] [5] [10] [10] [10] [] Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear, using the Maryland CNC Test. In the examination report, the examiner stated that "the Veteran's hearing is within normal limits, Bilaterally, and following review of STRS, within normal limits, bilaterally at entrance and separation with no significant threshold shift." Analysis As an initial matter, it is necessary to determine if the Veteran has a current disability for VA purposes. Based on the June 2015 VA examination for hearing loss, along with the February 2019 VA medical appointment and the August 2021 VA examination, the Board finds that there is no current bilateral hearing loss disability (as defined for VA disability compensation purposes). In all these tests his hearing was found to be within normal limits. In the absence of proof of a current disability, there is no valid claim of service connection. See Brammer, 3 Vet. App. at 225. Because the Veteran does not have a current disability, it is not necessary to address whether there is a causal link between the Veteran's hearing issues and service. Finally, addressing the Veteran's lay statements, the Board understands that the Veteran sincerely believes that his bilateral hearing loss is related to his service. However, he is not medically qualified ("competent") to provide a causal nexus opinion in this case because this issue is medically complex (because there may be multiple possible causes of hearing loss, including genetics and aging, that are not observable factors). See Jandreau. Consequently, the Board cannot assign significant probative weight to his belief and must, instead, assign substantial probative weight to June 2015, February 2019, and August 2021 VA medical examinations. The Veteran has asserted that the June 2015 hearing test was inaccurate and legally inadequate because the audiologist stopped the test multiple times to tell him to "push the button" and that, after a while, the Veteran stopped pushing the button because all he wanted was to "have a normal conversation without feeling stupid." It is true that VA has a duty to assist claimants and must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). However, the veteran claimant also has a responsibility to participate in this process. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996) ("The duty to assist in the development and adjudication of a claim is not a one way street."). In this case, the Veteran knowingly stopped participating in the audiological testing that was intended to develop evidence supporting his claim and he cannot now assert that VA failed in its duty to assist when the Veteran himself knowingly acted in a way that caused any potential deficiencies in the June 2015 hearing test. Id. Because the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for bilateral hearing loss must be denied at this time. 2. Lumbar spine disorder The Veteran contends that service connection is warranted for a lumbar spine disorder. In a March 2015 Statement in Support of Claim the Veteran reported that he "aggravated his spinal injuries for years working on aircraft while in the military." In an October 2015 NOD, the Veteran stated that he initially injured his back in the Navy during a "packout" but that he never reported it because he was told "to be tough and not to complain." During a September 2021 VA examination, the Veteran stated that he worked in flight deck operations where he was responsible for managing the "chains" that were used to tie down aircraft on the hangar and flight decks. The Veteran stated that his work often required him to work 12-hour shifts where he spent a large amount of time "lifting and carrying chains around, including "up and down a very steep stair-ladder that connected decks." During one of those shifts, the Veteran recalled an incident where he and a fellow crewmate were lowering a box of chains down a stairwell when his crewmate "lost his footing and dropped the box." The Veteran stated that he was holding onto the "upper side only to be pulled the rest of the way down the stairs, falling at least 5 steps worth of height." The Veteran explained that he did not report his falling accident or the resulting back pain at the time because "going to sick call was highly discouraged, and even then, should only be done during off-duty hours." He stated that at one time when his back pain was "particularly unbearable" he asked his supervisor if he could go to sick call and was told, "no and to suck it up." In addition, the Veteran also explained that, at that time, he was "too young and naïve to see a doctor despite his increasing back pain. During the Veteran's April 1997 separation examination from the Navy, his spine was reported to be normal in the clinical evaluation portion of the examination. In the report of medical history, the Veteran checked the box for "yes" for several other medical issues but checked the box for "no" in response to the question of whether he had recurrent back pain. The Veteran also told the September 2021 VA medical examiner that, after he left the Navy, he took private training in aircraft electronics and became certified through the FAA. He said that he decided to sign up for the Army Reserves and that his back issues continued while he was in Reserves. He was also part of the National Guard. Discussing his time in the National Guard, the Veteran stated that he attended his weekend per month and two weeks per year as required by the National Guard. The Veteran further reported that, during this time, "he continued to have back pains during this period, but his civilian and military work duties were much lighter than what he experienced in the Navy, so he would just 'push through' back pain, determined, to not let his back pain get in the way of his career." The Veteran stated that "he could not recall any specific back injuries [or] accidents during this period." During a January 2000 Army National Guard report of medical examination, the Veteran's spine was marked as normal. The examiner added a comment in the notes section of the examination indicating that the Veteran had "full lumbar spine range of motion." Moreover, in the summary of defects section of the examination, the examiner stated that the Veteran was a "normal healthy individual with no significant medical history." However, on the report of medical history section of the examination, the Veteran checked that he suffered from recurrent back pain. Finally, on the physician's summary potion within the medical history portion of the examination, the examiner wrote "Herniated disc lumbar spine with physical therapy in 1998. No profile, disability. Currently well under control with physical therapy." In a March 2001 report of medical history for a flight physical during active duty with the Army, the Veteran marked "no" to recurrent back pain or having injured his back. The following month, in a April 2001 report for medical examination (again for a flight physical for the Army), the Veteran's spine was marked as normal. During a report of medical history for active duty in August 2001, the Veteran checked "no" when asked if he suffered from any injury while on active duty for which he did not seek medical care. A January 2011 private treatment record reflected a diagnosis of "lumbar degenerative disc disease, lumbar spondylosis, spinal stenosis, herniation without myelopathy, and lumbar facet syndrome." Additionally, during the Veteran's September 2021 VA examination, the examiner specified that the Veteran had diagnoses of "lumbar degenerative disc disease and degenerative joint disease with right lower extremity radiculopathy." After providing the Veteran with a diagnosis, the VA examiner addressed whether the Veteran's lumbar spine disability was related to his service. The September 2021 VA examiner stated that he could not find clear evidence to indicate that the Veteran injured himself during service or a period of active duty for training (ACDUTRA). He based his opinion, in part, not only the absence of medical documentation showing a back injury or back issues during the Veteran's various examinations In fact, the examiner also emphasized that medical documentation showed the opposite in that the Veteran's spine was normal during his relevant military examinations. The examiner also explained why the Veteran's January 2000 report of a herniated disc did not support a medical opinion that the current disability was related to service. To begin with, the examiner stated that when asked about his medical history, the Veteran failed to mention his herniated disc during the examination. Moreover, he pointed to objective evidence from the January 2000 examination which showed that the Veteran did not have any significant chronic medical condition, at least not one that would limit his ability to perform his duties and/or to be deployable. Moreover, the Veteran's other 2000 and 2001 medical records do not suggest that he had a chronic or recurring back condition. The examiner further explained that he could not locate any evidence of the Veteran having been seen for a back condition (either acute or chronic in nature) during any active-duty period or during ACDUTRA, whether it be with the Army, Navy, or otherwise. The examiner also stated that he found no evidence that his condition was permanently aggravated by an active-duty period; ACDUTRA or for that matter during a period of inactive duty for the training period. Specifically, the examiner further pointed to the fact that "there was no evidence available of a line of duty determination documentation, nor was there evidence available of being placed on a profile to limit duty. In fact, the relevant documentation continually showed the Veteran's spine as normal. The Veteran subsequently disagreed with the VA examiner's conclusions and stated that the back pain he began to experience in the Navy "felt out of proportion to what a 24-year-old should have." Analysis As an initial matter, the Board finds that the Veteran has a current disability as evidenced by both the January 2011 private treatment record, and as further supported by the September 2021 VA medical examination. Next, it is necessary to determine if the Veteran's lumbar spine disorder manifested during or is otherwise related to a period of active-duty service or ACDUTRA. The Board has carefully reviewed the extensive evidence but, for the reasons that follow, finds that the Veteran's lumbar spine disorder did not manifest during, or is otherwise causally related to, a period of active-duty service or ACDUTRA. The Board is sympathetic to the Veteran's reports that he felt that he was unable to report his back pain or any accidents that may have caused injury to his back during service. However, the Veteran had every opportunity to report his back issues during his separation examination. The Board is aware of the Veteran's claim that he did not "understand the purpose" or the importance of the separation examination. This, however, is outweighed by the fact that in the Report of Medical History portion of the separation examination, the Veteran explicitly checked multiple "yes" boxes for several other medical issues including hearing loss, broken bones, syphilis, foot trouble, and depression, while also explicitly checking "no" to the box for recurrent back pain. In other words, affirmatively answering yes to other medical issues shows that the Veteran had, at least some idea about the importance of the examination. Moreover, the objective evidence in the Report of Medical Examination portion of the examination showed that the Veteran had a clinically normal spine. This showing was further reflected in all other relevant examinations during the Veteran's time in the military. The Board finds the September 2021 VA examiner's negative nexus rationale that the Veteran's back issues did not begin during a period of active duty service and/or ACDUTRA persuasive given that all examinations throughout the Veteran's military career showed a normal spine. Additionally, the examiner noted that the Veteran not only failed to bring up the herniated disc issue to him during the examination but that also he did not find any objective medical documentation showing a herniated disc. When one adds the fact that the Veteran's own reports of medical history sometimes note back pain and/or an injury to his back and at other times explicitly denies it, the Board concludes that the evidence is against a finding that the Veteran's back disability began during active duty service, or during a period of ACDUTRA, or is otherwise related to his military service. Finally, addressing the Veteran's lay statements, the Board understands that the Veteran sincerely believes that his back issues are related to his service; however, he is not competent (medically qualified) to provide a causal nexus opinion in this case, because that would require complex medical opinion. See Jandreau. Finally, the fact that the Veteran was not diagnosed with a back disorder until many years after service, and that his reports of medical history concerning his back issues are inconsistent, the Board cannot assign significant probative weight to his belief. The Board must, instead, assign more probative weight to the objective medical evidence, which shows that the Veteran's lumbar spine disorder did not manifest during, or is not otherwise causally related to, a period of active-duty service and/or ACDUTRA. [CONTINUED ON NEXT PAGE] Because the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a lumbar spine disorder must be denied. See 38 U.S.C. § 5107; see Ortiz Victoria Moshiashwili, Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mintz, Allison 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.