Citation Nr: 22017045 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-08 831 DATE: March 23, 2022 ORDER Service connection for degenerative arthritis of the spine is denied. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the spine was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established or is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. Resolving reasonable doubt in the Veteran's favor, his right ear hearing loss is related to service. 3. The Veteran experienced a decrease in left ear hearing acuity and tinnitus at least within the one-year presumptive period after discharge from service, and there was a continuity of symptomatology after discharge from service without evidence of a clearly attributable intercurrent cause. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the spine have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.304, 3.306, 3.307, 3.309(a), 3.385. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A transcript is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, 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 (or within an applicable presumptive period) 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). 1. Service connection for degenerative arthritis of the spine is denied. The Veteran seeks service connection for degenerative arthritis of the spine. He contends his back disability onset during service when he was passing ammunition and pulled his back. He also reported his back going out during a run and during a parade. See October 2021 Board hearing transcript at 2. An April 1991 service treatment record shows the Veteran was placed on light duty for 24 hours. A June 1991 service treatment record reflects had back pain in the line of duty with restriction to his quarters for 48 hours. A subsequent June 1991 service treatment record notes he was to have no physical training for one week and no lifting, marching, or jumping. A July 1991 service treatment record indicates a continuation of no physical training, lifting up to 20 pounds, standing for longer than 30 minutes without five minutes rest. An October 1991 periodic report of medical examination reflects a normal clinical evaluation of the 'spine-other musculoskeletal.' A post-service October 1995 private treatment record indicates the Veteran reported sustaining an injury about a year and a half ago. A subsequent October 1995 private treatment record notes alignment of the spine is normal with no areas of subluxation and disc degeneration at the L4-L5 and L5-S1 levels. An August 1996 postoperative report reflects a diagnosis of 'herniated disc L5-S1 right.' An August 1996 private treatment record also reflects a diagnosis of 'lumbar disc syndrome.' A February 2002 private treatment record reflects a postoperative diagnosis of 'Right L5, recurrent.' A March 2015 private treatment record indicates the Veteran was lifting and twisting at work in January when he felt a pop in his back. March 2015 private treatment records also indicate no gross abnormalities in the low back or lower extremities with nonspecific magnetic resonance imaging (MRI). A March 2016 private treatment record notes complaints of ongoing back pain. An April 2016 private treatment record also notes lumbar spine surgery at least twice in the past including in 1996 and 2002. An August 2017 VA treatment record notes a history of back surgeries in 1995, 2000, and 2008. The Veteran underwent a VA back examination in October 2017. The examiner noted diagnoses of degenerative arthritis of the spine, degenerative disc disease of the lumbar spine, status post subtotal hemilaminectomy at the L4-L5 level, L5-S1 right excision of 'hnp L5-S1 right,' and foraminotomy L4-L5, L5-S1 right. The Veteran reported onset of his back disability during active duty, including uploading M1 gun rounds and feeling something give in his back. The examiner opined that the Veteran's back disabilities were less likely than not incurred in or caused by his back condition during service. The examiner indicated review of the records and current medical literature but found the objective evidence does not support a chronic lumbar spine condition in active duty or for four years after separation from active duty. In February 2018, the Veteran reported seeing a chiropractic clinic from 1992 to 1993 and a medical doctor in 1994; however, the records are unavailable. An addendum examination was obtained in June 2018. The examiner diagnosed lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, degenerative joint disease of the lumbar spine, laminectomy lumbar spine, and lumbar strain. The Veteran reported onset during service with a post-service injury requiring surgical intervention in 1996. The Veteran also reported reinjury in 2002. The examiner opined that the Veteran's back condition was less likely than not incurred in or caused by service. The examiner noted that service treatment records show a report of low back pain in 1991, yet there are reports of further trauma/injury to the back after service, which required surgical intervention. The Veteran separated from service in 1992 but was diagnosed with degeneration joint disease in 1995 with work in a factory setting. Due to further injury and trauma after service, the examiner found the evidence did not support a causal connection between the Veteran's service and his degenerative joint disease of the lumbar spine or his subsequent surgeries. The Veteran has a current diagnosis of arthritis, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, after a review of the evidentiary record, the Board finds the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Board further concludes the evidence of record persuasively weighs against finding that a medical nexus exists between the Veteran's back disability and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. VA and private treatment records show the Veteran was not diagnosed with a back condition until 1995, years after his separation from service and years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of back pain since service, during the presumptive period, and/or consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current back disability. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. The Veteran has not demonstrated the necessary medical expertise to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board finds the Veteran's reports are inconsistent with his reports in contemporaneous treatment records. During his October 2021 Board hearing, the Veteran reported back surgery within one year of service; however, his VA and private treatment records indicate his first back surgery was in 1996. Further, the October 1995 private treatment record that first shows symptoms of back pain after service indicate that he sustained an injury about a year and half ago. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to his post-service back injury. The June 2018 VA examiner determined that the symptoms were due to further trauma/injury to the back after service, which required surgical intervention. The June 2018 VA opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation as to why the Veteran's back disability is not related to service. Furthermore, there is no competing medical opinion of record. The Board thus finds that the June 2018 opinion is dispositive of the issue at hand. While the Veteran believes his back disability is related to an in-service injury, event, or disease, including his 1991 in-service injury, he is not competent to provide a nexus opinion in this case. This determination is medically complex as it requires clinical knowledge of the spine and related internal pathology, and because the Veteran is noted to have sustained multiple acute back injuries following discharge from military service. Jandreau, 492 F.3d at 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for degenerative arthritis of the spine is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for bilateral hearing loss is granted. 3. Service connection for tinnitus is granted The Veteran seeks service connection for bilateral hearing loss and tinnitus. He contends his bilateral hearing loss is related to in-service acoustic trauma, including noise from armored vehicles. See October 2021 Board hearing at 9. For the purposes of applying the laws administered by VA, the VA considers impaired hearing a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Moreover, the Board recognizes that "the threshold for normal hearing is from 0 and 20 [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran's DD Form 214 reflects a military occupational specialty of M1 armor crewman and receipt of the 'sharpshooter qualification badge, M9MM pistol' and 'first class qualification badge, hand grenade.' The circumstances of his military service are consistent with the reported noise exposure. As such, the Board concedes the Veteran had noise exposure in service. 38 U.S.C. § 1154 (a). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to such in-service noise exposure. The Veteran's April 1988 enlistment report of medical examination during Reserve service reflects pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 55 50 LEFT 15 10 10 10 25 The summary of defects and diagnoses notes a hearing defect. An October 1988 service record indicates audiogram reveals normal hearing except for the 45 decibel hearing level in the right ear at 4000 hertz. A November 1988 note indicates the defect resolved. However, November 1988 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 45 45 LEFT 10 5 0 5 20 During active duty service, an October 1991 periodic repot of medical examination reflects pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 50 50 LEFT 5 5 5 5 25 The Veteran's service treatment records are otherwise silent regarding hearing loss and tinnitus. September 2015, January 2016, and March 2016 private treatment records note 'hearing ok to voice.' A May 2016 private treatment record notes hearing loss and ringing in the ears. A June 2016 VA treatment record also notes decreased hearing. A June 2017 VA treatment record notes no tinnitus. The Veteran underwent a VA hearing loss and tinnitus examination in October 2017. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 70 70 LEFT 25 15 20 55 65 The examiner indicated speech audiometry could not be tested as the use of word recognition score is not appropriate for this Veteran. The October 2017 examiner opined that the Veteran's bilateral hearing loss disability was not at least as likely as not caused by or a result of an event in military service but indicated an inability to determine a medical opinion regarding the etiology of the Veteran's hearing loss disability without resorting to speculation. The examiner indicated the service treatment records are incomplete and only include one October 1991 periodic audiogram, which revealed some high frequency hearing loss. The examiner noted that the Institute of Medicine (2006) stated the evidence is sufficient to conclude that, in the absence of audiograms obtained at the beginning and end of military service, it is difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service. The examiner also noted that the Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations states "the audiologist must not offer a medical opinion without a thorough review of the medical and military records." Without complete military audiometric records, particularly enlistment and separation audiograms, the examiner indicated he could not determine whether there was any onset or aggravation of hearing loss in-service; therefore, he could not assess the relationship between the Veteran's hearing loss and his military noise exposure without resorting to mere speculation. Regarding tinnitus, the Veteran reported recurrent bilateral subjective tinnitus that occurs daily for more than 6 hours. The Veteran could not determine the time of onset. The examiner indicated that an opinion regarding the etiology of the Veteran's tinnitus could not be provided because his service treatment records are incomplete. The examiner indicated that there is only an October 1991 periodic audiogram, which shows some high frequency hearing loss. However, according to the Noise Manual, "only seldom does noise cause a permanent tinnitus without also causing hearing loss." Additionally, the Institute of Medicine (2006) stated the evidence is sufficient to conclude that, in the absence of audiograms obtained at the beginning and end of military service, it is difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service. Furthermore, the Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations states "the audiologist must not offer a medical opinion without a thorough review of the medical and military records." Without complete military audiometric records, particularly enlistment and separation audiograms, the examiner indicated he could not determine whether there was any onset or aggravation of hearing loss in-service and therefore cannot assess the relationship between his tinnitus and his military noise exposure without resorting to mere speculation. An addendum opinion was obtained in October 2017. The examiner opined that the Veteran's bilateral hearing loss disability was less likely than not incurred in or caused by service. The examiner indicated there were two audiograms on his April 1988 enlistment examination, both of which revealed pre-existing hearing loss in the right ear. However, there was no significant threshold shift evident at any frequency in either ear on his October 1991 audiogram performed shortly before separation, his service treatment records are silent for complaint of or treatment for tinnitus, and there is no objective evidence of noise injury in service. As the service treatment records are silent for tinnitus and there is no significant threshold shift evidence in either ear shortly before separation, the examiner opined that the Veteran's preexisting hearing loss in the right ear was less likely as not aggravated in service. The examiner further opined that his current bilateral hearing loss and tinnitus are less likely as not caused by or a result of in-service noise exposure. Finally, the examiner noted the Institute of Medicine (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure, and according to the Noise Manual, "only seldom does noise cause a permanent tinnitus without also causing hearing loss." A December 2017 VA treatment record notes no vertigo, tinnitus, or dry mouth. A February 2018 VA treatment record indicates the Veteran reported long-term hearing loss in both ears, accompanied by constant bilateral tinnitus which has been present for over 30 years. The February 2018 VA treatment record indicates his history is positive for military, occupational, and recreational noise exposure with inconsistent use of hearing protection. The treatment provider noted bilateral moderately-severe sensorineural hearing loss. Word recognition scores were 96 percent in the right ear and 92 percent in the left ear. A March 2018 VA treatment record notes hearing aids. In February 2018, the Veteran reported his MOS required constant exposure to noise, including gun and tank fire. He also reported exposure to loud, high pitched noise levels from the jet turbine engine that powered the tank. After a review of the evidentiary record, the Board finds the evidence is at least in equipoise as to whether the Veteran's hearing loss and tinnitus onset in service or are otherwise related to service. Regarding right ear hearing loss, the Board notes the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's right ear hearing loss preexisted his military service from January 1989 to January 1992. However, the Veteran's enlistment examination is unavailable. Therefore, with respect to hearing loss, the presumption of soundness attaches. See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody)). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). In this case, the Veteran's April 1988 enlistment examination for Reserve service reflects right ear hearing loss for VA purposes. October and November 1988 service records also reflect a right ear hearing loss disability. Thus, the most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's right ear hearing loss disability preexisted active service. Regarding the second prong, 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 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 v. Shinseki, 25 Vet. App. 231, 236-37 (2012). There is not clear and unmistakable evidence that the disability was not aggravated by military service. The October 2017 VA opinions are also of diminished probative value as the Court found the cited Institute of Medicine (2006) report to have contradictory findings regarding delayed-onset hearing loss. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. The Veteran contends that his current hearing loss is related to his noise exposure in service. As there was in-service noise exposure, right ear hearing loss shown in service, and there is a current right ear hearing loss disability, all reasonable doubt as to causal nexus is resolved in the Veteran's favor. Service connection for right ear hearing loss is warranted. Regarding left ear hearing loss and tinnitus, the Veteran has credibly reported that he noticed difficulty hearing and ringing in his ears during service and consistently since service. He is competent to render such statements as they are based upon readily observable symptoms. 38 C.F.R. § 3.159 (a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). While the Veteran is not competent to diagnose sensorineural hearing loss, he is competent to observe a decrease in hearing acuity and its impact on his daily life, observations which do not require any specialized medical training or expertise. Similarly, he is competent to report the onset and continuity of his tinnitus symptoms, as tinnitus is a disease that is capable of lay observation. See Layno, 6 Vet. App. at 469-71. Indeed, tinnitus is diagnosed based on an individual's subjective complaints. The Veteran's reports of hearing loss and tinnitus since noise exposure in service are credible and noise exposure in-service has been conceded. He reported using hearing protection after service when needed but has not had excessive noise exposure. Thus, the Board finds the Veteran's post-service noise exposure to not be a clearly attributable intercurrent cause. 38 C.F.R. § 3.303 (b). As noted above, the VA examiners' unfavorable opinions are of little to no probative value. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds left ear hearing loss and tinnitus were reasonably noted within the one-year presumptive period after discharge from service and that there was a continuity of symptomatology without evidence of a clearly attributable intercurrent cause. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; 38 C.F.R. § 3.303 (b). Accordingly, service connection for left ear hearing loss and tinnitus is warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.