Citation Nr: 22052167 Decision Date: 09/13/22 Archive Date: 09/13/22 DOCKET NO. 17-48 737 DATE: September 13, 2022 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to service connection for a skin disability is remanded. FINDINGS OF FACT 1. Bilateral hearing disability is related to acoustic trauma sustained in active service. 2. Clear and unmistakable evidence demonstrates that the Veteran's lumbar spine disability pre-existed service and did not increase in severity during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2021). 2. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. § 1110, 1111, 1131 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the September 2017 substantive appeal, VA Form 9, the Veteran requested a hearing before the Board. However, in January 2022, the Board received a proper withdrawal of the request for a hearing. Accordingly, the right to a hearing before the Board in the present appeal is considered waived and the issues will be adjudicated on the merits based upon the evidence of record. Service Connection Bilateral Hearing Loss Disability The Veteran asserts that he has a bilateral hearing loss disability which can be attributed to his active service noise exposure. The Veteran maintains that he noticed a shift in his hearing acuity during his active service, which caused a decline in his ability to hear others during ordinary conversation and impacted his ability to decipher the direction that sounds are coming from. See December 2015, VA Examination Report. At the outset, the Board notes that the Veteran has been granted entitlement to service connection for tinnitus as a result of noise exposure sustained in active service. As such, the Board concedes that the Veteran sustained acoustic trauma during his active service. Service treatment records (STRs) are silent for complaints of, or treatment for decreased hearing acuity while the Veteran was in active service. Further, the Veteran did not have bilateral hearing loss disability for VA purposes while in active service. However, the Board notes that a slight variance is demonstrated in the Veteran's hearing acuity from the date of his enlistment examination to the time of his separation. See August 1966, Enlistment Examination and October 1968, Separation Examination Reports. Regardless, the Veteran is competent to report that he first experienced decreased hearing acuity during active service, and that the symptoms have continued ever since. Moreover, the Board finds the Veteran credible in that regard. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Veteran was afforded a VA audiology evaluation in December 2015. Audiometric testing results at that time showed the Veteran to have a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The VA examiner opined that the Veteran's bilateral hearing loss disability was less likely as not related to his active service. Although the Veteran's statement of the onset of symptoms during active service was noted in the examination report, the examiner opined that because service records indicated that the Veteran's hearing was normal at his separation from service, there was no evidence that the Veteran's military noise exposure is related to his current bilateral hearing loss disability. See December 2015, VA Examination Report. The Board finds that it is well established that a veteran does not need to show 38 C.F.R. § 3.385 hearing loss levels at any time in service, including on a service separation examination, to establish service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The December 2015 examination report improperly relies upon the Veteran's separation examination as the basis for providing a negative nexus opinion. The examiner failed to consider the Veteran's own statements or to consider and discuss the slight variance in audiometric testing results during service or to reconcile such varying results with the evidence of the Veteran's present disability. Based upon the foregoing, the Board finds no probative value in the December 2015 medical nexus opinion as the rationale is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that "most of the probative value of a medical opinion comes from its reasoning."). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, as noted above, the Veteran is competent to identify decreased hearing acuity and he has been found credible in that regard. In sum, the Board concedes that the Veteran sustained acoustic trauma during active service. He has competently and credibly reported that he first experienced decreased hearing acuity during active service, and that his symptoms have continued since that time. See December 2015, VA Examination Report. The Veteran has a current diagnosis of bilateral hearing loss disability for VA purposes. The VA medical opinion of record against the claim is inadequate. The Board finds that the evidence for and against the claim is in approximate balance. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Service Connection Lumbar Spine Disability The Veteran contends that his lumbar spine disability, claimed as aggravation of a back condition, is the result of his active service. See May 2015, VA Form 21-526EZ. 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 lumbar spine disability preexisted his military service from October 1966 to October 1968. The Veteran's August 1966 enlistment examination reflects that he reported a previous lumbar injury and diagnosis. The injury was confirmed in a private medical letter from August 1966, documenting that the Veteran was treated in 1962 for a muscle spasm surrounding the lumbar spine due to a reported back injury from football resulting in ongoing pain with moving and running. During the Veteran's enlistment examination, the examiner noted the injury and referenced the private medical letter as well as notated a finding of slight scoliosis of the lumbar spine. 38 C.F.R. § 3.304(b)(1). See August 1966, Enlistment Examination Report. Based upon the record and the disability being noted and recorded within the enlistment examination, the Board finds that the evidence establishes that the disability clearly and unmistakably existed prior to the Veteran's active service. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). The Veteran's service treatment records are silent for any complaints or reports of back pain, treatment, or injury. During his December 2015 VA examination, the Veteran initially reported that he did not incur any back injuries during service but clarified that his daily duties included heavy lifting, including loading truck tires by himself which were very heavy and made his back painful. He also later reported to the examiner that he injured his back when he was "pinned" between a truck and a trailer, but never sought any medical assistance for the injury. The Veteran also candidly reported that he began having back pain after his separation from service in the 1970's when he was doing heavy lifting at a factory. He further reported having "dislocated" his back several times during the course of that post-service employment and then continuing on to complete additional years' worth of work in labor-intensive positions that caused injury to his back. The examiner reviewed MRI scans of the Veteran's spine, confirming his current lumbar disability and distinguishing it from the pre-service disability of muscular back spasm. Overall, the examiner found that it is less likely than not that the Veteran's lumbar spine disability increased in severity during the course of his active service or that it was aggravated beyond its natural progression. The examiner explained that the pre-service injury, which clearly and unmistakably existed prior to service, did not demonstrate an increase in severity as a muscular back spasm condition would reflect reports of treatment, which are completely lacking within the Veteran's STRs nor is there a notation of the injury upon separation from service. In addition, although the Veteran reported during his examination that he completed heavy lifting tasks during the course of his active service duties and sustained injury to his back on one occasion when he was "pinned" between a truck and a trailer, there is no corroboration of such incidents indicating further medical injury. Indeed, the Veteran's own reporting that back pain did not begin until years after service, which he attributes to post-service employment (noting that he reported receiving workers' compensation benefits for those later injuries), further dispel any notion that his present disability resulted from active-service, or reflects aggravation beyond the natural progression of his documented pre-service back disability. The Veteran's ongoing VA treatment records reflect intermittent reports of low back pain as early as 2001, but none of those reports convey any attribution for the back pain to active-service duties. The Board finds that the most reliable and competent evidence is reflected within the STRs, medical treatment records, as well as in the VA examination report. The Veteran provided numerous statements to the VA examiner indicating that he injured his back during post-separation employment. Accordingly, his undocumented report of an injury in service is of less probative value. Overall, the Veteran's lumbar spine disability, which clearly and unmistakably existed prior to service, is not shown to have increased in severity throughout his active service. It was reported and medically confirmed that the Veteran suffered from a back injury in 1962, resulting in muscle spasms to the lumbar region. During active service, there were no documented reports of back pain, injury, or treatment. As the most competent and credible evidence of record does not show an increase in the severity of during service, the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran's pre-existing lumbar spine disability was not aggravated by military service entitlement to service connection must be denied. REASONS FOR REMAND Service Connection Skin Condition The Veteran has generally claimed, without further specificity, a skin condition, that he asserts is related to his active service. During the course of the appeal, argument has been made that the claimed skin condition is secondary to the Veteran's service-connected diabetes mellitus, type II (hereafter, "diabetes"), disability. The Board notes that a VA examination report from April 2006, completed in relation to the Veteran's service-connected diabetes disability claim, conveys a report by the VA examiner of "diabetic skin symptoms," reporting multiple moles observed on the Veteran. The Board further notes that ongoing VA treatment records from 2001 to 2015 reflect varying reports of skin conditions. However, the Veteran has not been afforded a VA examination in relation to his claimed skin condition and the Board finds that additional development is necessary for proper adjudication of the instant claim. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination or examinations in order to determine the diagnosis and etiology of any skin condition. The claims folder must be made available to, and be reviewed by, the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed skin disability is etiologically related to the Veteran's military service. The examiner should also provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed skin disability is caused or aggravated by a service-connected disability, to include as secondary to his service-connected diabetes. All opinions must be accompanied by a complete rationale. 3. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the remaining claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.