Citation Nr: 22040107 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-36 274 DATE: July 13, 2022 ORDER Entitlement to service connection for a lumbosacral spine disability is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran was hit by a car and treated for multiple left arm and left hand abrasions at Jacksonville Naval Hospital while on active service in March 1972. 2. The record evidence shows that the Veteran's spine was normal on multiple periodic physical examinations conducted throughout his 21 years of active service, and he denied any relevant medical history of recurrent back pain at these examinations, including at his separation physical examination in May 1992. 3. The record evidence shows that the Veteran has not consistently reported an in-service history of lumbosacral spine problems to his post-service VA treating clinicians. 4. The record evidence shows that the Veteran's current complaints of low back pain, which began in approximately 2003, do not result in functional impairment such that they can be considered a disability for VA adjudication purposes. CONCLUSION OF LAW The criteria for service connection for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the U.S. Marine Corps from May 1971 to July 1992, including in support of Operation Desert Shield/Desert Storm. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A virtual Board hearing was held in March 2022 before the undersigned Veterans Law Judge, and a copy of the hearing transcript has been added to the record. Entitlement to service connection for a lumbosacral spine disability The Board is not persuaded that the evidence supports granting the Veteran's claim of service connection for a lumbosacral spine disability. He essentially contends that he incurred a lumbosacral spine disability during active service, specifically as a result of in-service injuries sustained when he was involved in a car accident or as a result of a fall from a helicopter, and experienced continuous post-service disability. The record evidence does not support his assertions regarding an etiological link between any claimed lumbosacral spine disability and active service. It also shows that his current complaints of low back pain do not result in functional impairment such that they can be considered a disability even under the low threshold of Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that service connection is warranted for complaints of pain which result in functional impairment). The Veteran's voluminous service treatment records show that he denied all relevant pre-service medical history at his enlistment physical examination in December 1970, prior to his entry on to active service in May 1971, and his spine was normal. His spine was shown to be normal repeatedly on multiple periodic physical examinations conducted throughout his 21 years of active service, including in June 1973, March 1974, June 1975, November 1978, January 1982, January 1983, May 1987, and in May 1989. He denied any relevant medical history at periodic physical examinations in June 1973, June 1975, January 1983, and in May 1987. He also denied any relevant in-service medical history of recurrent back pain at his separation physical examination in May 1992 prior to his actual separation from service in July 1992. The service treatment records show that the Veteran was treated as an outpatient at Jacksonville Naval Hospital, Naval Air Station, Jacksonville, Florida, on March 16, 1972, for injuries sustained in a car accident which occurred on Roosevelt Boulevard in Jacksonville when he reported being struck by a car. The diagnosis was multiple abrasions of the left hand and left arm. He was discharged to duty. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The post-service evidence also does not support granting service connection for a lumbosacral spine disability. Contrary to his lay assertions and Board hearing testimony, the record evidence shows that the Veteran has not reported consistently an alleged in-service history of lumbosacral spine problems to his post-service VA treating clinicians. And, as noted above, it also shows that his current complaints of low back pain which began in approximately 2003 do not result in functional impairment such that they can be considered a disability for VA adjudication purposes. See Saunders, 886 F.3d at 1356. The Veteran's VA outpatient treatment records show that, in February 2003, he reported a medical history of back problems "for 2 years" to the triage nurse. When seen by a VA clinician, his complaints included back pain "since [a] fall from [a] helicopter in the 1970s." Physical examination of the back showed an intact "spinal rhythm," a painful range of motion, no palpation deficits, negative straight leg raising bilaterally, and intact distal pulses. The assessment included mechanical back pain. In June 2003, the Veteran complained of intermittent flare-ups of low back pain "really since the 1970s." He denied any history of trauma. X-rays taken in February 2003 were negative. Physical examination showed pain to palpation over the right lower paraspinous muscles "with some firmness in these," intact neuromuscular and vascular examination, negative straight leg raising, no sensory loss, an ability "to stand and walk with just pain in the back." The VA clinician stated, "Strength appears to be equal as best I can tell." He also stated that x-rays were not indicated clinically. The impression was chronic low back pain with acute exacerbation with muscle spasm. In August 2003, no relevant complaints were noted. A history of occasional back pain was noted. The assessment included stable back pain. The Veteran testified before the Board in March 2022 that he had been hit by a car on the right side while in Jacksonville, Florida, during active service in 1972 and was treated at Jacksonville Naval Hospital. He also testified, "My back didn't really bother me until probably a couple of years later." See Board hearing transcript dated March 24, 2022, at pp. 2. He testified further that he slipped on ice after falling out of a helicopter he was "pre-flighting" and ended up on his back but did not seek treatment for any back injuries at that time because his duties required him to get the helicopter in the air quickly. Contrary to the Veteran's lay assertions and hearing testimony, the record evidence does not support finding that he experiences current lumbosacral spine disability which is attributable to active service. The Board notes initially that, although he was involved in a car accident and was treated at Jacksonville Naval Hospital following this accident in 1972, his contemporaneous service treatment records show that he only experienced left hand and left arm lacerations at that time. This is consistent with the Veteran's subsequent testimony in March 2022 that his low back "didn't really bother" him at the time of this in-service accident or for several years thereafter. The Board finds it highly significant that he denied experiencing any in-service back problems when examined repeatedly during his 21 years of active service, including at his separation physical examination. The Board also finds what the Veteran reported to his in-service treating clinicians more probative than his assertions decades later that he injured his lumbosacral spine during service. Therefore, his more recent statements are not reliable in light of the contemporaneous and more probative evidence of record. The Veteran also has not reported consistently his alleged in-service medical history of lumbosacral spine problems to his post-service treating clinicians. His VA outpatient treatment records show that he initially sought treatment for lumbosacral spine problems in approximately February 2003, more than a decade after his service separation. When he first sought post-service treatment for low back pain in February 2003, he only reported a 2-year history of low back pain (or since approximately 2001) to the triage nurse. At that same outpatient treatment visit in February 2003, however, he also reported to the VA clinician that he had experienced low back pain "since [a] fall from [a] helicopter in the 1970s." He subsequently denied any history of trauma in June 2003 although he also reported experiencing intermittent flare-ups of low back pain "really since the 1970s." Two months later, in August 2003, the Veteran only reported a history of occasional back pain. These inconsistencies in what the Veteran reported to his post-service VA treating clinicians when he initially sought post-service treatment for low back pain render his subsequent assertions regarding his in-service medical history not probative on the issue of whether he experiences current lumbosacral spine disability which is related to active service. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a lumbosacral spine disability at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence other than the Veteran's inconsistent post-service statements to his VA treating clinicians and his Board hearing testimony which demonstrates that he experiences current lumbosacral spine disability which is related to active service. The Board notes in this regard that, as a lay person, the Veteran is not competent to diagnose himself as having a current lumbosacral spine disability or to relate this claimed disability to active service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). He finally has not identified or submitted any evidence demonstrating his entitlement to service connection for a lumbosacral spine disability. In summary, the Board finds that service connection for a lumbosacral spine disability is not warranted. REASONS FOR REMAND Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Veteran also contends that his service-connected bilateral hearing loss is more disabling than currently (and initially) evaluated. He testified at his March 2022 Board hearing that his hearing was tested in November 2021 and he subsequently received bilateral hearing aids from VA. Unfortunately, a review of the record evidence shows that this hearing testing has not been associated with the claims file. The United States Court of Appeals for Veterans Claims (Court) has held that VA is on constructive notice of all documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, on remand, the Veteran's updated VA treatment records should be obtained. The Court also has held that, when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). The record evidence shows that the Veteran's most recent VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) occurred in November 2017, more than 412 years ago. Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in November 2017, the Board finds that, on remand, he should be scheduled for an updated VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records, to include specifically VA audiometric testing conducted in November 2021. 2. Thereafter, schedule the Veteran for updated examination to determine the current nature and severity of his service-connected bilateral hearing loss. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.