Citation Nr: 0810574 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 06-21 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE 1. Entitlement to service connection for a lumbar and thoracic spine condition (claimed as degenerative disc/joint disease). 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active service from December 1953 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In January 2008, the veteran testified during a hearing before the undersigned at the RO. At the hearing, the veteran waived RO review of additional evidence he had submitted in support of this claim. FINDINGS OF FACT 1. A lumbar and thoracic spine condition is not related to active service. 2. There is an approximate balance of positive and negative evidence regarding whether the veteran first had tinnitus while on active duty and whether his current tinnitus is related to acoustic trauma in service. CONCLUSIONS OF LAW 1. Service connection for a lumbar and thoracic spine condition is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1112, 1113, 1137, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2007). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claims on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. A. Duty to Notify In a July 2005 letter, the RO notified the veteran of the evidence required to substantiate his claims for service connection. This letter explained VA's duty to assist the veteran with the development of his claim and informed the veteran what evidence VA would be responsible for obtaining and what evidence VA would assist the veteran in obtaining. This letter also advised the veteran to submit any relevant medical records in his possession. This notice was provided prior to the initial unfavorable rating decision, in compliance with the timing requirements set forth in Pelegrini. A March 2006 letter informed the veteran of the evidence necessary to establish a disability rating or effective date in the event of award of the benefit sought. The claims were readjudicated in a September 2007 supplemental statement of the case; curing any timing error. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the duty to notify has been satisfied. The Board also finds that the duty to assist has been satisfied. The RO made reasonable efforts to assist the veteran with the development of this claim. The record in this case includes service medical records, post-service medical records and a reports of VA examinations. Neither the veteran nor his representative has identified any pertinent information that remains outstanding. Under these circumstances, the Board finds the requirements of the duty to assist have been satisfied and no further development is required to comply with the duty to assist the veteran. II. Service Connection Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. §§ 1110, 1131. 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(b). Service connection for certain conditions, including arthritis, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309. The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to the condition as to which, under Court case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic then generally a showing of continuity of symptomatology after service is required for service connection. Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Lumbar and thoracic spine condition The veteran served on active duty from December 1953 to August 1957. Service medical records show that the veteran complained of back pain in July 1955. He reported that he jumped from a pilot boat onto a cement deck, approximately four feet below and immediately developed pain in the right side of the back. The veteran was hospitalized for 10 days. A treatment note from the U.S. Naval Hospital noted that physical examination was essentially negative. X-rays of the spine and chest were reported as negative. There were no motor or sensory findings and no pain in the spine. The diagnosis was acute strain of the muscles of the leg and back. A treatment note dated 10 days after admission to the hospital indicated that the veteran's pain subsided within 24 hours of admission and disappeared. The veteran was returned to duty. The report of the August 1957 separation examination report noted normal clinical evaluation of the spine. The report is negative for any complaints of back pain. There is no post-service medical evidence showing that a chronic disease manifested to a compensable degree within one year of separation from service. If a chronic condition was not shown during service or within an applicable presumptive period, service connection may be established under 38 C.F.R. § 3.303(b) with evidence of continuity of symptomatology. The veteran testified at the Board hearing that he has had ongoing back pain since the injury in service. He testified that he was hospitalized in 1957 or 1958 for treatment of back pain. The veteran testified that he attempted to obtain those treatment records but that they are no longer available. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Id. In its role as a finder of fact, the Board may weigh the absence of contemporaneous records in assessing the credibility of lay evidence. The earliest post-service evidence of a diagnosis of a lumbar and thoracic spine condition is dated in 2005, more than 40 years after separation from service and more than 35 years after the reported treatment for which the treatment records are unavailable. The lengthy period of time without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the veteran's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may also be established under § 3.303(d) where the evidence shows that a disease diagnosed after discharge from service was incurred in service. The record in this case contains three medical opinions regarding the etiology of the veteran's back condition. In a February 2005 statement, T.D., a physician's assistant who has treated the veteran stated that the veteran suffers from a chronic back condition from an injury he sustained while in military service as a young adult. T.D. stated that the veteran suffers from chronic back pain and recurring episodes of back spasm and pain as a result of this injury. T.D. stated that the veteran had been a patient in his practice for six months. In a March 2005 statement a chiropractor, Dr. E.S.M., D.C. indicated that he treated the veteran for mid and low back pain that started when the veteran was separating an anchor chain in the military. Dr. E.S.M. noted that the veteran reported low back and mid back pain "on and off" since then. Dr. E.S.M. stated that the veteran suffers from chronic degenerative joint disease and disc disease of the thoracic and lumbar vertebrae as well as degenerative osteophyte formations at nearly every level of the spine. The veteran underwent a VA examination in March 2007. The examiner diagnosed chronic lumbar strain but did not provide an opinion regarding whether such condition was related to service. The VA examiner reviewed the claims file in June 2007. The examiner discussed the veteran's history of injury in service and noted that service medical records showed that an injury occurred when the veteran jumped from a pilot boat four feet to a cement deck. The examiner stated that, even though the veteran appeared to have been hospitalized for ten days, a note indicated that the pain had subsided and disappeared within 24 hours of admission. The examiner noted that the veteran was returned to duty and a note indicated that he had no difficulties. The examiner observed that subsequent service medical records up until the final physical in 1957 did not demonstrate any other record of back pain and that the final physical checked the spine as "normal." The examiner concluded that the veteran's current back condition is not related to service. The examiner stated that his opinion was based upon the fact that the veteran had a single incident of back injury in service, with rapid recovery reported, no records of ongoing pain and no indication at his final physical of back pain, combined with an occupation for the next two years which certainly had the potential of placing stress on or injuring his back. The examiner also observed that the next available documentation of the current condition dated only back to 2005. The Board must address the conflicting VA and private medical evidence regarding a medical nexus. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444 (2000). In this case, the Board accords greater probative weight to the opinion of the VA physician who examined the veteran in 2007 because the VA examiner reviewed the claims file, including the service medical records and provided a detailed discussion of the in-service injury and course of treatment as well as the post-service treatment. The opinions submitted by the private treatment providers, in contrast, were not based upon a review of the claims file or the service medical records. The Board finds that there is a preponderance of the evidence against the veteran's claim for service connection for a lumbar and thoracic spine condition. The evidence does not show that a chronic disease manifested during service or within one year of separation. The Board finds that the evidence of continuity of symptomatology after service has not been shown. Additionally, the Board finds that the weight of the medical evidence is against a finding that a current lumbar and thoracic spine condition is related to service. Accordingly, as there is a preponderance of the evidence against the claim for service connection for a lumbar and thoracic spine condition, the claim must be denied. B. Tinnitus The veteran contends that tinnitus was caused by noise exposure during service. At the Board hearing, the veteran testified that his in-service noise exposures included detonating mines and running landing crafts A March 2007 VA examination report reflects that the veteran reported a history of noise exposure while in the service assembling and destroying mines. The veteran reported constant bilateral tinnitus for 50 years. Pre- and post- service history was negative for noise exposure. The examiner diagnosed constant, severe tinnitus bilaterally for 50 years. The examiner did not provide an opinion regarding whether tinnitus was related to in-service noise exposure. At an April 2007 VA examination, the examiner noted that the claims file was reviewed. The veteran's reported in-service noise exposure assembling and destroying mines. The veteran gave a history of constant, severe tinnitus for 50 years. The VA examiner diagnosed mild to moderately severe right ear sensorineural hearing loss, mild to moderate left ear sensorineural hearing loss and subjective, constant severe tinnitus bilaterally for 50 years. The examiner opined that tinnitus is not related to in-service noise exposure. The examiner reasoned that there was no documentation of tinnitus in the service medical records. The Board notes that a September 2007 rating decision granted service connection for bilateral hearing loss based on acoustic trauma in service. While tinnitus complaints were not documented in the service medical records, the veteran has testified that he had tinnitus in service. The veteran is competent to state that he experienced ringing in the ears during service and after. See Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, VA examiners have diagnosed constant, severe tinnitus of more than 50 years in duration. The Board finds that there is an approximate balance of positive and negative evidence regarding whether the veteran's current tinnitus is related to acoustic trauma in service. Therefore, resolving reasonable doubt in the veteran's favor, the Board finds that service connection for tinnitus is warranted. ORDER Service connection for a lumbar and thoracic spine condition is denied. Service connection for tinnitus is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs