Citation Nr: 1343370 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-22 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to December 1987. He also had Reserve service. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision by the Des Moines, Iowa Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for tinnitus and a back disability. The Veteran had a RO hearing in July 2010 before a hearing officer and a Board videoconference hearing in August 2013 before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. The Board has reviewed the Veteran's paper claims file and his file on the Virtual VA electronic file system to ensure a total review of the evidence. FINDINGS OF FACT 1. Tinnitus began following noise exposure in service and continued after service. 2. Thoracic muscle injury sustained during ACDUTRA in August 1989 has produced ongoing disability manifested by back pain. CONCLUSIONS OF LAW 1. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Chronic thoracic area back disability manifested by pain was incurred in service. 38 U.S.C.A. §§ 101(24), 1110, 5107 (West 2002); 38 C.F.R. §§ 3.6(a), 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Tinnitus The Veteran contends that he began to have tinnitus during active duty and has continued to have tinnitus through the present. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service treatment records reflect that during service he did not report experiencing tinnitus. His hearing was found to be within normal limits on testing service. His primary specialty during service was firefighter. In the Veteran's September 2008 claim for VA disability compensation, he indicated that tinnitus began in 1985. On VA audiology examination in March 2009, the Veteran reported no significant difficulty in hearing or understanding. He reported perceiving a constant bilateral test signal sound. He indicated that this began during his basic training and continued through the present. He stated that during service he was exposed to noise from weapons training, generators, and duties as a firefighter. He reported that after service he was exposed to noise through work in trucking and firefighting and through intermittent use of motorcycles. On audiometric testing, the Veteran's hearing was within normal limits bilaterally. The examiner provided the opinion that, because there was no record of complaints of tinnitus during or soon after service, it is less likely than not that the Veteran's current tinnitus is related to noise exposure during service. In May 2009, the Veteran's mother wrote that the Veteran visited her after his basic training and advanced individual training. She recalled that at that time he told her that he noticed ringing in his ears from all the shooting and loud explosions during his training. In a June 2009 statement, the Veteran wrote that during basic training, after training at a rifle range, he began noticing ringing in his ears at night when he was trying to go to sleep. He stated that tinnitus continued through his active service and afterward. He stated that after service he was not exposed to considerable noise when driving a truck, and the helmet he wore while riding a motorcycle protected his ears. In the July 2010 RO hearing, the Veteran reported that toward the end of basic training he began to notice ringing in his ears. He stated that during basic training he lost his earplugs and did not ask for more, to avoid punishment for losing them. He indicated that he went though firing ranges and grenade ranges without earplugs. He reported that he began to experience ringing in his ears. He indicated that during service he was also exposed to noise from pumps and generators in his firefighting duties and from aircraft engines from duties at airfields. He stated that his jobs and activities after service did not involve a lot of noise exposure. He indicated that many years after service he first learned that ringing in the ears could be a basis for VA disability compensation. In August 2010, the Veteran's wife wrote that she met the Veteran in 1988. She stated that after she met the Veteran he told her that he had ringing in his ears, and that he needed to keep a fan going at night in order to sleep. In April 2012, a VA audiologist was asked to provide an opinion regarding the likely etiology of the Veteran's tinnitus. The audiologist noted that the Veteran reported noise exposure during service and the onset of tinnitus during service. The audiologist noted that the Veteran's hearing was within normal limits at separation from service, and that he had noise exposure after service as a fire fighter. The audiologist noted that the earliest record of the Veteran's report of tinnitus was many years after service. The audiologist expressed the opinion that it is less likely than not that the Veteran's current tinnitus is related to noise exposure during service. In the August 2013 Board hearing, the Veteran reported that he lost his earplugs partway through basic training, and was exposed to considerable noise during weapons training. He stated that he began to experience tinnitus during service, and continued to experience it through the present. He indicated that during service he did not know that ringing in the ears was considered a disorder. He noted that his mother remembered that while he was in service he told her that he had ringing in his ears. In September 2013, the Veteran was seen at Iowa ENT Center, a private practice. He described his history of noise exposure and tinnitus. Evaluating physician H. C., M.D., stated that the most common cause for tinnitus is high frequency sensorineural hearing loss, and that such hearing loss is most commonly related to hearing loss. Dr. C. noted that the Veteran had noise exposure but did not have hearing loss. Dr. C. stated, "It is difficult to attribute his tinnitus to the noise exposure that he had in 1985 considering his subsequent work history since that time as well as his diabetes history." The Veteran's accounts and other evidence regarding his activities during and after service sufficiently indicate that he had noise exposure during and after service. He states that his tinnitus began in service and continued after service. He did not report tinnitus to service or medical authorities while he was in service; but his mother recalls that he told her about it while he was in service. In the absence of contemporaneous written evidence, the claim for service connection for tinnitus depends on the weight of recent statements from the Veteran and his family members. The Veteran and his mother and wife are competent to recall his experiences and statements in the 1980s. The Board finds the statements plausible, consistent, and reasonably credible. The statements in favor of the claim approximately balance the lack of contemporaneous documentation of the Veteran's symptoms. Giving the benefit of the doubt to the claimant, the Board grants service connection for tinnitus. Back Disability The Veteran contends that back injury sustained during Army Reserve training duty caused ongoing back disability. Active military service includes any period of active duty of training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). During Army Reserve ACDUTRA in August 1989, the Veteran received treatment for a back injury. Treatment records relate that he fell off of a truck and landed on his back. A treating clinician noted bruising and pain and spasm at the T-8 through T-10 levels. The Veteran was admitted to a hospital for treatment. A treating clinician indicated that the injury was suspected to be musculoskeletal, versus a remote possibility of disc damage. X-rays were negative, and a clinician provided a diagnosis of contusion. Records show that the Veteran received private chiropractic treatment beginning in April 1993. X-rays showed osteophyte formation and foraminal encroachment in the lumbosacral spine. The chiropractor's diagnosis was thoracic subluxation. On VA examination in March 2009, the Veteran reported sustaining back injury during Reserve training service in 1989, when he fell out of a truck. He indicated that after service he worked as a truck driver and then as a firefighter and fire chief. He related having had chiropractic treatment in about 1992. He reported that presently he had frequent dull spine and muscle pain that was worse with activity. He indicated that he addressed the pain with nonprescription pain medication. He related flare-ups of worse back pain two to three times a month and spasms about two times a year. The examiner found evidence of tenderness of the thoracic sacrospinalis muscles bilaterally. The examiner provided a diagnosis of musculoskeletal thoracic spine pain. The examiner expressed the opinion that it was less likely than not that the Veteran's current back pain is a result of his August 1989 injury. The examiner opined that it was at least as likely as not that the Veteran's current back pain was caused or aggravated by his post-service work as a truck driver and firefighter, and/or the risk of back pain in the general population. The claims file contains records of treatment of the Veteran from 2009 forward by private physician R. B., M.D. Those records included the report of low back MRI taken in May 2009, which showed lumbar disc bulging. In the July 2010 RO hearing, the Veteran described the 1989 back injury and treatment. He indicated that back pain continued after that injury. He stated that he had not sustained any additional back injuries since the 1989 injury. In an August 2010 statement, the Veteran's wife stated that after his training in August 1989 he told her that he had hurt his back and had a lot of pain. She reported that his back pain had continued since. In August 2010, Dr. B., M.D., wrote that he treated the Veteran, and that the Veteran had chronic back pain stemming from a fall from a truck. Treatment notes from 2011 through 2013 reflect the Veteran's ongoing back pain. In June 2013, Dr. B. wrote that the Veteran had chronic back pain since an injury in 1989 while he was in the military. Dr. B. expressed the opinion that the Veteran's mid back pain was more likely than not related to the injury sustained in service. In June 2013, Dr. B. wrote another letter relating the Veteran's mid back pain to the 1989 injury. In the August 2013 Board hearing, the Veteran described his back symptoms following the 1989 fall from the truck. He stated that he continued to have back pain after that accident. He related that he sometimes had to take sick leave from work because of his ongoing back pain. Service treatment records document the Veteran's back injury during ACDUTRA in August 1989. The Veteran's accounts of ongoing back pain since that injury are reasonably consistent and credible. The records of chiropractic treatment for thoracic subluxation a few years later, in 1993, help to show continuity of the symptoms. The VA physician who examined the Veteran in 2009 and the Veteran's treating physician, Dr. B., provided conflicting opinions about the likely etiology of the current back disability. Both physicians reviewed the Veteran's records. The VA examiner explained his reasoning, while Dr. B. has considerable familiarity with the Veteran's case as his treating physician. The opinions of each physician have approximately equal persuasive weight. Considering the credible evidence of continuity of symptoms, and at least equivocal medical opinion support for service connection, the evidence supports a finding that the current back disability was incurred during ACDUTRA service in 1989. The Board is granting the benefits sought on appeal. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating those claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for back disability residual to thoracic area injury is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs