Citation Nr: 22018692 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-16 868 DATE: March 30, 2022 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The competent and credible evidence of record is at least in equipoise that the Veteran's lumbar strain is attributable to her service. 2. The evidence persuasively weighs against finding that the Veteran's bilateral hearing loss meets VA criteria for a diagnosis of a current bilateral hearing loss disability. CONCLUSIONS OF LAW 1. Resolving all reasonable doubts in the Veteran's favor, the criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385, 4.85 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2008 to July 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In December 2019, the Board remanded the matters for further development. Specifically, the Board requested that the RO schedule the Veteran for VA examinations to determine the nature and etiology of his claimed bilateral hearing loss and to readjudicate the claims on appeal. The Board finds that the February 2020 medical opinion obtained in connection with the Veteran's claim for bilateral hearing loss is adequate. Also, in October 2020, the RO issued an SSOC. Thus, the Board finds that there has been substantial compliance with the Board's December 2019 Remand directives, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his or her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a low back disability The Veteran contends that her low back disability is due to her service. Specifically, she reports that such is due to deployment working 24-hour guard while in full body armor; strenuous physical exercises and carrying duffle bags that weighed 80 to 110 pounds. See November 2020 Veteran Statement. The evidence of record shows that the Veteran has a diagnosis of a lumbar strain. See November 2014 VA Examination. Thus, the first element of service connection has been established. The remaining inquiry is whether the diagnosis was due to service. See 38 C.F.R. § 3.310. Of record are multiple opinions provided by the Veteran's primary care physician that identifies the Veteran's low back disability as due to her service. See September, October and November 2020 VA Physician Opinion. Specifically, she states that the Veteran "has known chronic lower back pain and continues to suffer". She noted her review of the Veteran's military and post-military low back complaints and continuous management and stated "it is most likely than not that her current back issue is related to her [m]ilitary service." The Board finds that all available evidence favors a finding that the Veteran's low back disability is due to service. The November 2014 VA examination found that the Veteran's current lumbar strain was not due to service. While the examiner briefly discussed the Veteran's back issues in service, the examiner failed to discuss the Veteran's continued treatment after service and continuity of symptomatology. The opinion of the Veteran's primary care physician directly connects the Veteran's low back disability to her service and shows that the Veteran's history was appropriately considered. Resolving all reasonable doubt in the Veteran's favor, service connection for the Veteran's low back disability is warranted. 2. Entitlement to service connection for bilateral hearing loss The Veteran asserts service connection for bilateral hearing loss. In a claim of service connection for impaired hearing, demonstration of the first Shedden element, that is the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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 question for the Board is whether the Veteran has a bilateral hearing loss disability for VA purposes that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303. The Veteran explained that she had noise exposure from before, during and after deployment in service. See November 2020 Veteran Statement. She believes she has hearing loss. The Veteran is competent and credible to describe such noise exposure during service and, indeed, the RO and VA examiners concede such noise exposure. However, she is not competent to provide a diagnosis of bilateral hearing loss for VA purposes. In this regard, the Board acknowledges the Veteran's belief that she has bilateral hearing loss, but she is not competent to report that she has a diagnosis of bilateral hearing loss for VA purposes as it requires audiological testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377n.4 (Fed. Cir. 2007). As such evidence is not competent, the Board does not find that it is relevant or probative of the matter on appeal. Prior to leaving service, the Veteran underwent an examination in July 2012. Her hearing results were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz Right 15 15 15 10 20 30 20 Left 25 25 20 15 15 35 30 Her right ear average was 15 and left ear average was 18.75 Hz. Her speech discrimination scores (Maryland CNC word list) were 96 percent bilaterally. An October 2015 audiology appointment revealed normal hearing, bilaterally. The examination found hearing within normal limits with speech discrimination scores of 88 percent in the right ear and 84 percent in the left ear utilizing the NU-6 word lists. The Board notes that, although the October 2015 audiological evaluation results include speech discrimination testing, they were obtained utilizing the Northwestern University Auditory No. 6 (NU-6) word test. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test using Maryland CNC. 38 C.F.R. § 4.85 (a). Therefore, the October 2015 audiological evaluation is not acceptable for VA purposes. On remand, the Veteran participated in an additional examination in November 2021. Her hearing results were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz Right 20 20 20 20 15 20 15 Left 15 15 15 10 10 10 15 Her right ear average was 19 Hz and her left ear average was 13 Hz. Her speech discrimination scores (Maryland CNC word list) were 100 percent bilaterally. The Board acknowledges her treatment records report trouble hearing. However, the records are absent for a diagnosis of bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. After review of the competent and probative evidence, the Board finds that service connection for bilateral hearing loss is not warranted as the Veteran does not have hearing loss for VA purposes. The Board acknowledges the Veteran's assertion that she has hearing loss that is due to service. However, she did not have hearing loss for VA purposes at either the 2012 or 2020 examination. In particular, neither examination showed speech discrimination scores less than 94 percent, none of the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz were 40 decibels or greater; and her auditory thresholds for at least three of these frequencies were not 26 decibels or greater. As the weight of the evidence is against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable. Therefore, service connection for bilateral hearing loss is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.