Citation Nr: 22040122 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-17 984 DATE: July 13, 2022 ORDER Service connection for a back disability is denied. An initial increased rating for bilateral hearing loss, evaluated as noncompensably disabling prior to December 23, 2020, and as 10 percent disabling thereafter, is denied. REMANDED Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. A back disability was not present in service or for years thereafter and is not etiologically related to active military service. 2. Prior to December 23, 2020, the Veteran had, at worst, Level III hearing in the right and left ears. 3. For the period beginning December 23, 2020, the Veteran had, at worst, Level III hearing in the right ear and Level IV hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Prior to December 23, 2020, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. 3. For the period beginning December 23, 2020, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to February 1970. In October 2020, the Board reopened and remanded the claims to the RO for additional development. While the claim was in remand status, in a March 2021 rating decision, the RO increased the Veteran's disability rating for bilateral hearing loss to 10 percent, effective December 23, 2020. Because the increase in the evaluation of the service-connected bilateral hearing loss does not represent the maximum rating available, the initial evaluation claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the Board has framed the issue on appeal as reflected on the title page. See, too, Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including arthritis, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. See 38 U.S.C. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory 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). The law further provides that, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply, and the burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If a presumption of aggravation under section 1153 arises due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 1. Entitlement to service connection for a back disability. The Veteran contends that he injured his back in 1969, during active duty, while stationed at Camp Lejeune, during drilling exercises. September 1968 service treatment record reflects the Veteran's complaints of a stiff back; he treated with heat and hot soaks. An October 1968 service treatment record reflects complaints of a mid-lower dorsal spasm. An x-ray examination of the lumbosacral spine was not remarkable but showed mild scoliosis and a disparate leg length. A September 1969 record reflects that the Veteran pulled a muscle in his lower back while doing a squat thrust. The assessment was a muscle strain. Post-service treatment records show the Veteran was first diagnosed with a back disability many years after his discharge. In a February 1971 VA examination, although the Veteran reported that he injured his back during in 1969 at Camp Lejeune, he indicated further that after 20 days of bed rest, he did not receive any further treatment. X-rays and evaluation of the cervical and lumbosacral spine were normal. VA treatment records from 2013 document the Veteran's denial for back pain or tenderness on palpation. In August 2013, an x-ray was indicated for the lumbar spine based on the Veteran's reports that he had a piece of retained dart metal from a childhood injury. In October 2015, the Veteran sought a neurosurgery consultation for neck and back pain. Subsequent VA treatment records reflect a diagnosis of lumbar stenosis and radiculopathy. See treatment records from the Pittsburgh VA Medical Center and treatment records from the VA Health Care Center Heinz Division. However, the evidence does not indicate that a diagnosed back disability is due to any event or incident of the Veteran's period of active duty. There is no other evidence, VA or private, which indicates that the Veteran's back disability may be related to his active military service. In this regard, in accordance with the Board's October 2020 remand, the Veteran was afforded a VA examination and medical opinion in January 2021. He was diagnosed with degenerative arthritis of the thoracolumbar spine, which the examiner opined was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that in the Veteran's Reports of Medical History, he denied recurrent back pain, and a lumbar spine x-ray performed in February 1971 was normal. The examiner also noted that the Veteran was not diagnosed with degenerative arthritis in the lumbar spine until 2020. There is no contrary medical opinion of record. The Board notes that service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the negative evidence for any back problems within a year of separation from service and the lack of treatment/diagnosis for a back disability for several years after discharge from service, the Board does not find the Veteran's current accounts of a low back disability since service to be credible. As such, the Board finds the January 2021 VA examiner's opinion is supported, and another examination is not necessary. There is no other medical evidence of record, VA or private showing that the Veteran's current back disability is related to his active military service. The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that arthritis of the lumbosacral spine was initially shown more than one year after the Veteran's discharge from service. As indicated, the Veteran's statements regarding continuity of symptoms are entitlement to very little to no probative value and are outweighed by the more probative evidence showing that a continuity of symptoms has not been established. Consequently, service connection for a back disability on the basis that such became manifest in service and persisted, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C. § 1112), is not warranted. The Board acknowledges the Veteran's assertion that his back disability is due to events during his active service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed back disability and his active service or events therein, as it would require medical expertise to say that the current back disability, identified after service, is the result of an in-service disease or injury. Such an opinion would require medical expertise, as it would require clinical testing and interpretation of clinical findings, as well as assessing the relevance of any noted symptomatology. The Veteran has not otherwise been shown to have such medical expertise. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his back disability. 38 C.F.R. § 3.159 (a)(1), (2). For the reasons and basis stated above, the Board finds that service connection for a back disability is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) is 55 decibels or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (2019). Analysis In an August 2015 rating decision, the RO granted service connection for bilateral hearing loss. A noncompensable evaluation was assigned, effective May 7, 2015, based on the results of an August 2015 VA audiological evaluation. The Veteran appealed this initial rating. See January 2016 notice of disagreement. In a March 2021 rating decision, the RO granted a 10 percent rating for bilateral hearing loss, effective December 23, 2020, based on the results of a December 2020 VA audiological examinations, discussed further below. 1. A compensable rating for bilateral hearing loss, prior to December 23, 2020 The Veteran was afforded a VA audiological examination in August 2015. The following audiometric findings were reported: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 35 35 45 50 41 Left (db): 30 45 50 50 44 Speech audiometry results revealed speech recognition ability of 82 percent in the right ear and 76 percent in the left ear. The Veteran reported functional impairment consisting of an inability to hear. These values do not meet the criteria of 38 C.F.R. § 4.86 (a) or (b) for an exceptional pattern of hearing impairment. Applying these values to the rating criteria results in a numeric designation of level III in the right ear and left ears. See 38 C.F.R. § 4.85, Table VI (2019). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent. Accordingly, the Board finds that, even with consideration of the functional impairment noted on VA examination in August 2015, there has been no point during the period prior to December 23, 2020, when the Veteran's hearing loss disability met or approximated the criteria for a compensable rating. The Board has considered whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The record, however, does not support assigning different percentage disability ratings during the period in question. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.7, 4.21 (2019). 2. A rating in excess of 10 percent for bilateral hearing loss, for the period beginning December 23, 2020 The Veteran was afforded another VA audiological examination on December 23, 2020. The following audiometric findings were reported: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 35 40 45 60 45 Left (db): 30 35 50 60 43.75 Speech audiometry results revealed speech recognition ability of 76 percent in the right ear and 72 percent in the left ear. Functional speaking the Veteran reported that he could not hear conversations, he had to turn the phone up, and he had difficulty hearing clearly with hearing aids. These values do not meet the criteria of 38 C.F.R. § 4.86 (a) or (b) for an exceptional pattern of hearing impairment. Applying these values to the rating criteria results in a numeric designation of level III in the right ear and level IV in the left ear. See 38 C.F.R. § 4.85, Table VI (2019). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 10 percent. The Veteran's contemporaneous VA treatment records reflect that the Veteran had impaired hearing and used hearing aids. Accordingly, the Board finds that there has been no point, for the period beginning December 23, 2020 when the Veteran's bilateral hearing loss disability met or approximated the criteria for a rating in excess of 10 percent. Accordingly, the Board finds that, even with consideration of the functional impairment noted on VA examination in December 2020, there has been no point during the period beginning December 23, 2020 when the Veteran's hearing loss disability met or approximated the criteria for a rating in excess of 10 percent. The Board has considered whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The record, however, does not support assigning different percentage disability ratings during the period in question. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.7, 4.21 (2019). REASONS FOR REMAND 1. Entitlement to service connection for asthma is remanded. The Veteran contends that his pre-existing asthma was aggravated during active military service. Asthma was not noted upon entrance into service. Specifically, on a March 1968 Report of Medical History completed for enlistment purposes, the Veteran checked the 'No' box for asthma. A March 1968 Report of Medical Examination did not note the presence of asthma. However, July 1968 service treatment record reflects complaints of asthma. The impression was history of asthma. An August 1969 service treatment record reflects complaints of shortness of breath for several years. The impression was hyperventilative syndrome. A September 1969 Report of Medical History completed by the Veteran reflects that he reported asthma. The examiner noted a prior history of asthma. The assessment was asthma with shortness of breath. In October 1969, the Veteran complained of asthma. The chest x-ray was clear. He had two attacks of asthma. A January 1970 clinical record reflects a diagnosis of hyperventilation syndrome, existed prior to entry (EPTE). Such record references childhood asthma, hay fever, shortness of breath, and sinusitis. A January 2021 VA examiner opined that the Veteran's currently diagnosed asthma clearly and unmistakably existed prior to service. Based on this evidence, the Board finds that clear and unmistakable evidence demonstrates that the Veteran's asthma existed prior to his active military service, and the presumption of soundness does not apply. Since the evidence shows that the Veteran's asthma pre-existed his military service, there must be proof of aggravation of the condition during active military service in order for a claim for service connection to be granted. A preexisting injury or disease will be considered to have been aggravated by active service where there is any increase in disability during such service. As noted above, service treatment records show treatment for asthma and shortness of breath in 1968, 1969, and 1970. On post-service VA examination in February 1971, x-ray of the chest showed normal heart and lungs. The respiratory system showed normal breath sounds throughout the chest, no rales, and negative to percussion. Asthma was not diagnosed. VA treatment records, dated many years after discharge, show asthma, well-controlled on Spiriva, Advair, and Albuterol as needed only in January 2013. December 2013 records show asthma, stable on inhalers. Treatment records from 2014-2021 show the Veteran continues to be diagnosed with asthma, and although he has had acute exacerbations, it is well-controlled on inhalers. The January 2021 VA examiner opined that the Veteran's preexisting asthma was not aggravated beyond its natural progression in service. The rationale was that there was no documented evidence that the Veteran had to seek medical evaluation or treatment for asthma symptoms in service. The Board notes that, as discussed above, the Veteran was treated in service for symptoms of asthma, including shortness of breath. He was diagnosed during service with asthma and hyperventilative syndrome. As such, the Board finds that the January 2021 VA examiner's opinion is based on an inaccurate factual basis and is therefore, inadequate for evaluation purposes. Therefore, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's current asthma is necessary. 38 C.F.R. § 4.2 (2019); Barr v. Nicholson, 21 Vet. App. 303 (2007). The matter is REMANDED for the following actions: 1. The RO should conduct necessary development to attempt to obtain the Veteran's updated treatment records. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the currently diagnosed asthma. The examiner must be provided access to the electronic claims file and indicate review of the claims file in the examination report. All necessary testing should be completed. The examiner should opine as to whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran's preexisting asthma disability was not aggravated beyond the natural progression of the condition by such service? The term "aggravated" in this context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.