Citation Nr: 22017114 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-15 092 DATE: March 24, 2022 ORDER The issue of entitlement to service connection for a bilateral hearing loss (BHL) disability is granted. The issue of entitlement to service connection for degenerative arthritis and degenerative disc disease (DDD) other than intervertebral disc syndrome (IVDS) of the cervical spine is granted. The issue of entitlement to service connection for degenerative arthritis and DDD other than IVDS of the lumbar spine is granted. The issue of entitlement to service connection for lumbar radiculopathy, right lower extremity, is granted. The issue of entitlement to service connection for lumbar radiculopathy, left lower extremity, is granted. FINDINGS OF FACT 1. The Veteran's BHL disability is related to in-service noise exposure. 2. The Veteran has a diagnosis of degenerative arthritis and DDD other than IVDS of the cervical spine and has experienced symptoms since service. 3. The Veteran has a diagnosis of degenerative arthritis and DDD other than IVDS of the lumbar spine and has experienced symptoms since service. 4. The Veteran's lumbar radiculopathy, right lower extremity, is proximately due to his service-connected degenerative arthritis and DDD other than IVDS of the lumbar spine. 5. The Veteran's lumbar radiculopathy, left lower extremity, is proximately due to his service-connected degenerative arthritis and DDD other than IVDS of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for a BHL disability are met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2021). 2. The criteria for entitlement to service connection for degenerative arthritis and DDD other than IVDS of the cervical spine are met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 3. The criteria for entitlement to service connection for degenerative arthritis and DDD other than IVDS of the lumbar spine are met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 4. The criteria for service connection for lumbar radiculopathy, right lower extremity as secondary to service-connected degenerative arthritis and DDD other than IVDS of the lumbar spine are met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). 5. The criteria for service connection for lumbar radiculopathy, left lower extremity as secondary to service-connected degenerative arthritis and DDD other than IVDS of the lumbar spine are met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1981 to July 1988. In October 2020, the Veteran testified under oath before the undersigned Veteran's Law Judge at a virtual hearing. A transcript of that hearing is of record. In June 2021, the Board remanded the issues on appeal for additional development. Service Connection Legal Criteria 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases will be presumed related to service 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, 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). Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. 1. Entitlement to service connection for a BHL disability. Upon review of the evidence of record, the Board finds that the Veteran meets the criteria for service connection for a BHL disability. First, he has a diagnosed disability for VA purposes. See VA examination report, November 2021. Second, the record reflects in-service noise exposure. For example, the November 2021 VA examination report notes that the Veteran "reported being a pilot [in service] where he flew jets primarily." The Veteran's military personnel records show the completion of basic jet flight training, advanced jet training, and the designation of naval aviator. The Board acknowledges other in-service noise exposures identified in the November 2021 VA examination report and that the Veteran "reported consistent use of hearing protection," for at least some of those identified. However, it is not clear to the Board that there was hearing protection for all in-service noise exposure. Further, the November 2021 VA examination report concedes significant in-service noise exposure and that the Veteran's "MOS had a high probability of noise exposure." Accordingly, the Board finds that the Veteran experienced in-service noise exposure. Turning next to the third criterion, the Board acknowledges the November 2021 VA examination report and the negative nexus opinions for both ears. (The Board also acknowledges the May 2016 VA examination report; however, a nexus opinion was not provided at that time.) Regarding the November 2021 VA opinions, the Board finds that the rationales provided for these opinions are inadequate and affords them little probative weight. While recognizing "significant" noise exposure in service, these opinions point to a lack of evidence of hearing loss in service and at separation. However, the fact that there was no hearing loss at separation is not dispositive of the issue, and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Further, the Board acknowledges that the November 2021 VA examination report describes experiences of post-service noise exposure. For example, the November 2021 VA examination report states that the Veteran "reported being a commercial pilot for 18 years." However, it also states that the Veteran "reported having sound attenuating headsets when flying." Similarly, the report states that the Veteran uses "power tools around his house, lawn mowers, chain saws, etc."; however, here again, it notes the "consistent use of hearing protection." The report does state that the Veteran "did some driving for delivering oils and he also worked as a fireman, where he was around different sirens from inside the fire trucks" and no hearing protection is noted. However, at the October 2020 Board virtual hearing, the Veteran stated the following regarding post-service noise exposure: If I was in contact with noise, it was typically with the proper headgear -- the proper hearing stuff. You know, like earmuffs and things like that. So, there is some noise in the environment no matter where you go, and I was a firefighter for a while. So, you know, truck engines, but I also had headsets and sound-attenuating headsets. So, those didn't come into existence until later. The Board resolves reasonable doubt in favor of the Veteran. Accordingly, the Board is left with a record that shows a diagnosed disability that cannot be conclusively disassociated from the conceded in-service noise exposure. Therefore, the Board finds that the third criterion of service connection has been met. As the Veteran has met all three criteria, service connection is warranted. The issue of entitlement to service connection for a BHL disability is granted. 2. Entitlement to service connection for degenerative arthritis and DDD other than IVDS of the cervical spine. The Board finds that the Veteran meets the criteria for service connection for degenerative arthritis and DDD other than IVDS of the cervical spine. First, the Veteran has a diagnosis. See VA examination report, November 2021. In addition, the Veteran contends that his neck injury occurred in service. At the October 2020 Board virtual hearing, he stated: We were in training in an A4. We were doing air combat maneuvers, and I did a -- a reversal, and when you do the reversal you have to move your head to the other side to keep sight of the aircraft that's the aggressor. And at that point, I felt like a click in my neck, and it -- you know, it just progressed aching after that, and now kind of a loss of movement and pain when I turn in the right direction. It's just a dull pain, but it's there continuously. However, when asked if he reported his injury or went to sick call, the Veteran responded: VETERAN: No. You don't do that. No. [REP]: And why -- why didn't you? VETERAN: Because you'd be taken off of flight status, and that's why I'm there, so, you know, you learn to live with your problems. The Board acknowledges that the Veteran's June 1988 separation examination indicates normal neck, as well as spine and other musculoskeletal. Nevertheless, the Veteran described discussing the issue "with a flight surgeon" post-service "probably a year or so after the military." See Board virtual hearing, October 2020. He also stated that he retired from civilian work flying passenger aircraft at the age of 51 "because I just couldn't sit in a seat any longer." Id. Further, the Veteran denied any potentially contributing post-service injuries. Id. The Board finds the Veteran's statements regarding the onset of symptoms in-service, and the continuation of symptoms thereafter, to be both competent and credible. First, the Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, his lay statements regarding the onset of his pain and discomfort and the continuation of such symptoms are competent. Further, the Board finds them to be credible for the following reasons. For one, the Veteran's description of events is consistent with his service records which show the completion of basic jet flight training, advanced jet training, and the designation of naval aviator. In addition, the Board finds persuasive the Veteran's explanation of why he did not report his injury or seek treatment in service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran experienced an in-service injury and that his symptoms continued thereafter. Finally, the Board acknowledges the November 2021 VA opinion, which states that the diagnosed disability is "less likely than not caused by the neck pain during active duty service." However, the Board finds this opinion to be inadequate. Specifically, the Board finds that the opinion does not provide an adequate rationale to justify the conclusion reached. For example, the opinion states that "[t]he changes to the cervical spine are more likely than not caused by or related to a natural progression in age related changes in a now 67 year old male." However, the opinion does not explain why this is so. Further, the opinion does not adequately address the Veteran's lay statements regarding the in-service injury and the continuity of his symptoms. Accordingly, the Board finds the opinion to be inadequate and affords it little probative weight. Given the above, the Board is left with a record that shows an in-service injury that resulted in continuity of symptoms and a diagnosis of degenerative arthritis and DDD other than IVDS of the cervical spine. Resolving reasonable doubt in favor of the Veteran, the Board cannot conclusively disassociate the Veteran's diagnosed disability from his service. Therefore, the Board finds that the criteria for service connection have been met. The issue is granted. 3. Entitlement to service connection for degenerative arthritis and DDD other than IVDS of the lumbar spine. The Board finds that the Veteran meets the criteria for service connection for degenerative arthritis and DDD other than IVDS of the lumbar spine. First, the Veteran has a diagnosis. See VA examination report, November 2021. The Veteran contends that his back pain began in service and that the condition has "[s]tayed the same" since onset. Id. At the October 2020 Board virtual hearing, the Veteran gave the following testimony: The nature of the mission I had was long water -- long over-water flights -- a duration of six and a half to seven hours in two directions in one day. So, I'd be flying 11 to 11 12 hours every day -- every other day for anywhere up to five months. And what was going on was, I was sitting on an ejection seat with a very thin pad in an aircraft that had no place to stand up. So, alls (sic) you could do was sit or move around in a crouch, so you could never really straighten your back. And then what would happen is I would land on the aircraft carrier, which is a pretty violent maneuver -- get out of the airplane for a couple of minutes. That's what I was describing walking across the deck going inside -- getting whatever I needed to leave again and then flying another six to seven hours sitting in that seat again. So, typically at the end of the day you just -- I'm -- I'm doing the pretzel, you know. And I was doing that for months on end on three different or four different deployments. The nature of -- that's just the nature of the aircraft I flew. The Board acknowledges that the Veteran's June 1988 separation examination indicates normal spine and other musculoskeletal. Nevertheless, evidence in the form of "buddy" statements supports a history of back pain shortly post-service and continuing thereafter. For example, in a March 2016 statement, K.P. S.J. states that he has known the Veteran since 1994. He states that he "noticed that [the Veteran] had periods of obvious difficulty with his back lasting anywhere from a couple days to a few weeks." K.P. S.J. also states: "As an Advanced Emergency Medical Technician myself, my curiosity would lead me to ask him what happened and his stock answer was always: 'it's an old Navy injury'." In a March 2016 statement, D.R.J. states that he has known the Veteran "since late 1997" and that "[d]uring this time and over the years I have seen [the Veteran] succumb to back pain and loss of movement on numerous occasions." The Veteran denies post-service injury that impacted the back. See Board virtual hearing, October 2020. The Board finds the Veteran's contentions regarding the onset of symptoms in-service, and the continuation of symptoms thereafter, to be both competent and credible. First, the Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, his lay statements regarding the onset of his pain and discomfort and the continuation of such symptoms are competent. Further, the Board finds them to be credible for the following reasons. For one, the Veteran's description of events is consistent with service records showing the Veteran's completion of basic jet flight training, advanced jet training, and the designation of naval aviator. Further, the Board finds persuasive the "buddy" statements of record that support a continuation of symptoms post-service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran experienced in-service injury and that his symptoms continued thereafter. Finally, the Board acknowledges the November 2021 VA opinion, which states that the diagnosed disability is "less likely than not caused by the back pain during active duty service." Nevertheless, the Board finds this opinion to be inadequate. Specifically, the Board finds that the opinion does not provide an adequate rationale to justify the conclusion reached. For example, the opinion states that "[t]he changes to the lumbar spine are more likely than not caused by or related to a natural progression in age related changes in a now 67 year old male." However, the opinion does not explain why this is so. Further, the opinion does not adequately address the Veteran's lay statements regarding the in-service injury and the continuity of his symptoms. The opinion also does not address the "buddy" statements. Accordingly, the Board finds the opinion to be inadequate and affords it little probative weight. Given the above, the Board is left with a record that shows in-service injury that resulted in continuity of symptoms and a diagnosis of degenerative arthritis and DDD other than IVDS of the lumbar spine. Resolving reasonable doubt in favor of the Veteran, the Board cannot conclusively disassociate the Veteran's diagnosed disability from his service. Therefore, the Board finds that the criteria for service connection have been met. The issue is granted. 4. Entitlement to service connection for lumbar radiculopathy, right lower extremity. 5. Entitlement to service connection for lumbar radiculopathy, left lower extremity. Finally, the Board finds that the Veteran meets the criteria for bilateral lumbar radiculopathy. First, the Veteran has a diagnosis of lumbar radiculopathy. See Opinion from Dr. M.S., November 2020; see also Private treatment record, July 2021. In addition, per this decision, the Veteran is service connected for degenerative arthritis and DDD other than IVDS of the lumbar spine. In a November 2020 opinion, Dr. M.S. states that a November 2020 MRI "showed L4-5 bilateral foraminal stenosis secondary to disc disease. This finding is consistent [sic] with symptoms of recurrent lumbar radiculopathy and is likely the result of recurrent trauma during his service as a pilot in the military." The Board acknowledges that in the June 2021 remand, it found that the November 2020 private opinion did not provide an adequate rationale to justify the conclusion reached. However, the Board's finding pertained to the opinion's rationale regarding direct service connection. The Board finds the opinion adequate to support secondary service connection. The opinion identifies "L4-5 bilateral foraminal stenosis secondary to disc disease" and that "[t]his finding is consistant [sic] with symptoms of recurrent lumbar radiculopathy." The Board acknowledges that the opinion goes on to say that the finding "is likely the result of recurrent trauma during his service as a pilot in the military," which suggests a direct service connection; however, the Board finds the prior cited language adequate to resolve reasonable doubt in the Veteran's favor and conclude that it is at least as likely as not that the lumbar radiculopathy is proximately due to the Veteran's service-connect lumbar DDD. 38 C.F.R. § 3.310. The Board also acknowledges the November 2021 VA opinion, but finds it to be inadequate and affords it no probative weight. This opinion states: "Bilateral Lower extremity radiculopathy is not a currently diagnosed condition at this time." However, this finding is not supported by other medical evidence of record. See, e.g., Private treatment record, July 2021 (noting an assessment of lumbar radiculopathy). Given the above, the Board finds that the competent and credible evidence of record supports a finding that the Veteran has a diagnosis of lumbar radiculopathy that is proximately due to the Veteran's service-connected degenerative arthritis and DDD other than IVDS of the lumbar spine. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection are met. The issues are granted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.