Citation Nr: 22015491 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-65 509 DATE: March 17, 2022 ORDER Service connection for a low back disability is granted. Service connection for tinnitus is granted. Service connection for right ear hearing loss is denied. REMANDED Service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. There is not clear and unmistakable evidence that the Veteran's back disorder preexisted service and was not aggravated therein. It is also not clear and unmistakable that the Veteran's current back disorder is unrelated to the back problems treated during service. 2. The Veteran's tinnitus is related to acknowledged in-service noise exposure. 3. The Veteran has not established a current disability of right ear sensorineural hearing loss per VA regulatory standards. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1961 to November 1963. This appeal arises from the February 2016 rating decision, denying service connection for bilateral hearing loss, tinnitus, and a back condition. The Veteran testified at a Board virtual hearing in January 2022, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Service connection for a low back disability The Veteran testified to having injured his back prior to service and having aggravating back pain from duties while assigned to an artillery unit, from moving a lot of ammunition off trucks and digging a lot of latrines. Aggravation Law The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner, 370 F.3d at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second aggravation prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). The government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any 'increase in disability [was] due to the natural progress of the' preexisting condition." Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof remains with the government and must be met by "affirmative evidence" demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn, 25 Vet. App. at 236-37. The Veteran does not need to produce any evidence of aggravation to prevail under the aggravation prong, even if clear and unmistakable evidence establishes that the disease preexisted service. In other words, in a situation such as here, where a condition is not noted at entrance, the burden is never shifted back to the Veteran to show that his disability increased in severity during service. Id. If the government rebuts the presumption of soundness, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111 by showing any of the above, the Veteran's claim is one of direct service connection. Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096. Here, the Veteran presently has a low back disability, diagnosed as mechanical back pain, facet joint arthropathy, intervertebral disc syndrome (IVDS), and degenerative disc disease (DDD) by a private August 2015 back conditions Disability Benefits Questionnaire (DBQ). A December 2011 private physician's consultation report by Dr. R.M. states the Veteran's reported medical history that he had an L-3 disc space compression fracture at 19 years old and was casted for six months. The Veteran stated that he entered the Army a year later, despite his disclosure of the injury. See August 2015 Veteran's statement. On review, the Board observes that on his November 1961 entrance examination Report of Medical History, the Veteran had reported he had a hurt back and wore a brace due to a compressed fracture of the lumbar spine, with no difficulty in the past year. He also reported he was presently in "good health." However, the entrance Report of Medical Examination recorded that X-ray testing of the lumbosacral spine showed evidence of an old fracture of the L-3 disc space that was "well healed." The entrance Report of Medical Examination had no conditions "noted" in the relevant section on "Summary of Defects and Diagnoses." The Board notes that the entrance report of medical examination is not the same as the entrance report of medical history. History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b)(1). Here, in relevant part, the entrance report of medical examination was essentially normal. Thus, despite his reported medical history, the Veteran did not have a preexisting condition "noted" upon entry into service. Similarly, the November 1961 Report of Induction, associated with his service personnel records, specifically lists that there are no physical defects and diseases at that time. The question remains whether it is clear and unmistakable that a low back disability preexisted service. To this extent, the Board finds that there is not clear and unmistakable evidence that a lumbar spine disability preexisted service. Despite the Veteran's reports of a prior back injury on the entrance exam, it is significant that the entrance examination did not find a back disorder existing at that time. A review of service treatment records shortly following his entrance into service also does not indicate the presence of a pre-existing back disability. Thus, the evidence of record does not meet the high burden of establishing by clear and unmistakable evidence that a back disorder preexisted service. See Horn, 25 Vet. App. at 240-41. As the evidence is not clear and unmistakable in showing that the condition preexisted service, his back disorder is assumed to have been incurred during service. See Horn, 25 Vet. App. at 236. In this regard, the Veteran's service treatment records show he had some indication of a strained muscle involving the thoracic spine in late February 1963 and a possible lumbar muscle strain in mid-March 1963. The Board further finds his lay statements of developing back pain from in-service duties of load ammunition and digging latrines in his established in-service duties in the artillery unit to be uncontradicted, and so, competent and credible evidence in support of his claim. Further, there is a probative, positive medical opinion from Dr. D.M., dated in February 2022, that supports the notion that in-service heavy lifting duties led to worsening back pain. For these reasons, the Board finds that there is not clear and unmistakable evidence that his back disorder preexisted service and was not aggravated therein. It is also not clear and unmistakable that the Veteran's current back disorder is unrelated to the back problems treated during service. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for a low back disability. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Service connection for tinnitus The Veteran contends that while in an artillery unit, he was exposed to very loud weapons fire, such as from a Howitzer and artillery fire, without any hearing protection. He testified that his ears started ringing since he was assigned to an infantry unit and have been ringing nonstop since. See Board hearing transcript, at 5-6. The Veteran has a current diagnosis of tinnitus, per the January 2016 VA audiological examination report. As to the second requirement of in-service incurrence, the Veteran's service treatment records are unremarkable for complaint, treatment, or diagnosis of tinnitus. Nonetheless, his service personnel records, including his DD Form 214 shows a military occupational specialty of field artillery basic and mortar carrier driver duties, which is consistent with his contention that he experienced acoustic trauma from such duties. The Board finds the Veteran had in-service noise exposure, which is consistent with the places, types, and circumstances of his service. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In February 2016, a VA physician provided a negative opinion on whether the Veteran's tinnitus was related to service. However, the February 2016 opinion appears to be inadequate, for relying upon an inaccurate premise that the Veteran did not suffer in-service noise exposure. The opinion was also inaccurate for the notion that the Veteran's symptoms began only some years after service, whereas his later testimony has clarified that they began during service. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Tinnitus is a condition capable of lay observation, and the Veteran's reports of in-service occurrence are credible. Charles v. Principi, 16 Vet. App. 370 (2002). Tinnitus is considered an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-75 (2015). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has reported tinnitus occurring in service and continuing to the present. The Veteran is competent to state that he has experienced tinnitus since service. Charles, 16 Vet. App. 370. The approximate balance of the evidence is in favor of service connection for tinnitus. 38 U.S.C. § 5107 (b). Therefore, after resolving doubt in the Veteran's favor, service connection for tinnitus is warranted. 3. Service connection for right ear hearing loss The Veteran contends that he developed hearing loss from military noise exposure. As discussed above, the Board accepts that the Veteran suffered in-service noise exposure. In this case, the Board finds that the Veteran does not have a current hearing loss disability that can be service connected for the right ear. Not all hearing loss is considered a disability for VA purposes. 38 C.F.R. § 3.385. Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 percent. 38 C.F.R. § 3.385. The Veteran underwent a VA audiological examination in January 2016 and the examiner diagnosed sensorineural hearing loss bilaterally. The examiner found a speech recognition score using the Maryland CNC Test of 94 percent bilaterally. The examiner assessed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 30 35 LEFT 15 15 15 30 45 The Board acknowledges the Veteran's left ear showed 45 dB hearing loss at 4000 Hz at the VA examination, meeting the criteria of § 3.385 for hearing loss disability for VA purposes. The left ear is discussed further in the Remand section below. However, based on the VA examination results, under the criteria of § 3.385, the objective findings on audiometric testing do not meet the criteria for hearing loss in the right ear for VA purposes. The Board concludes, including on review of private treatment records, that the that the Veteran does not have a current right ear hearing loss disability for VA purposes and has not had one during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's May 2015 private audiological evaluation cannot be considered for VA hearing evaluation purposes, as it is not clear it includes a controlled speech discrimination test that is Maryland CNC compliant. 38 C.F.R. § 4.85 (a). For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for right hearing loss is warranted. Rather, the evidence persuasively weighs against this claim. The benefit of the doubt doctrine is therefore not for application as to the right hearing loss claim. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND 1. Service connection for left ear hearing loss is remanded. The Veteran contends that he developed hearing loss from military noise exposure. As discussed above, the Board accepts that the Veteran suffered in-service noise exposure and that the January 2016 VA audiometric testing showed a left ear hearing loss disability for VA purposes. Nevertheless, the January 2016 VA examiner provided a negative nexus opinion, based upon documented audiometric data at the entrance and separation examinations, citing that there was no significant threshold shift during service. However, the medical opinion is inadequate for failing to consider the Veteran's competent lay statements of military noise exposure during service and/or the possibility of a continuity of symptomatology of hearing loss symptoms dating back to service. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A remand is warranted for the AOJ to arrange for another VA medical nexus opinion on the Veteran's left ear hearing loss. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician, different from the previous VA examiner, to determine the nature and etiology of the claimed left ear hearing loss. On review of the record, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed left ear hearing loss is caused by or otherwise etiologically related to his active service. Rationale must be provided for the opinion proffered. In providing the requested rationale, the examiner should accept that the Veteran was exposed to military noise exposure in field artillery basic and mortar carrier driver duties in the U.S. Army. Also reconcile any competent lay statements by the Veteran regarding his history of hearing loss during and following service. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.