Citation Nr: 1737726 Decision Date: 09/07/17 Archive Date: 09/19/17 DOCKET NO. 08-28 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a lumbosacral strain. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active service from July 1983 to January 1988, January 1992 to January 1993, and February 2003 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008, February 2014, and May 2015 rating decisions of the Department of Veterans (VA) Regional Office (RO) in St. Petersburg, Florida. In the January 2008 rating decision, the RO, in pertinent part, denied service connection for a back disability. In May 2010, the Veteran also testified at a Travel Board hearing at the St. Petersburg RO; a transcript of this hearing is associated with the claims file. In February 2014, the Board granted the Veteran's claim for service connection for a back disorder. In a February 2014 rating decision, the RO implemented the Board's decision and assigned an initial rating of 10 percent for a lumbosacral strain, effective May 15, 2007. The Veteran filed a timely appeal to the assigned rating. In a May 2015 rating decision, the RO, in pertinent part, denied the claim for service connection for tinnitus. This matter was previously before the Board in January 2011, February 2014, and May 2015, at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that the Veteran filed a motion to advance his appeal on the docket due to financial hardship and deteriorating health. This motion was date-stamped as received in November 2013, and in a December 2013 letter the motion was denied. FINDINGS OF FACT 1. For the entirety of the appeal period, the Veteran's lumbosacral strain was manifested by subjective complaints of pain; objective findings reflect pain on motion, tenderness, decreased movement, and range of motion functionally limited to no worse than flexion of 80 degrees. 2. The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to active military service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for a lumbosacral strain for the entirety of the appeal period have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2016). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). VA's duty to notify has been satisfied through a notice letter dated May 2007, which fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. With regards to the back disability, the disagreement arises from the initial award of service connection. Where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103 (a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board, therefore, finds that all notice required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claims, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records (STRs) are associated with the claims file. All post-service treatment records and reports identified by the Veteran related to the claims decided herein have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist in locating additional records has been satisfied. The Veteran has been afforded multiple VA examinations to determine the severity of his service-connected back and etiology of his tinnitus over the course of this appeal. Each examination contains findings responsive to the applicable rating criteria. Further, each examination included a thorough discussion of the Veteran's symptomatology relating to those disabilities. As such, the Board finds them adequate for the purpose of deciding the issues considered herein. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Indeed, the Veteran has not argued that those VA examinations are somehow inadequate. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issues decided herein is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. II. Initial Rating Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2015); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In its February 2014 rating decision, the RO assigned a rating of 10 percent for the Veteran's back disability in accordance with the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, in relevant parts, Note (1) instructs to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under current provisions for rating intervertebral disc syndrome (IVDS), IVDS (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine as noted above, or under the Formula for Rating IVDS on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016). For evaluation of IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is assignable. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable. Id. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. A December 2007 VA examination report reflects flexion to 80 degrees, extension to 45 degrees, bilateral bending to 40 degrees, and bilateral rotation to 30 degrees. The Veteran performed five repetitions of toe-touches with no additional limitation of motion. There was no evidence of weakness, pain, fatigability, or incoordination after repetitive motion of the lumbar spine. There was no evidence or complaints of radiculopathy of the lower extremities, and the Veteran denied any bowel or bladder problems. A March 2011 VA examination report indicates flexion to 80 degrees, extension to 30 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees. There was no objective evidence of pain on active range of motion. The Veteran denied any bowel or bladder problems, and there was no evidence of radiculopathy of the lower extremities. Private treatment records in May 2014 reflect that the Veteran suffered a work-related back injury in July 2013, when he felt a sharp pain and straining in his lower back while lifting work equipment. He reported severe pain in his back that radiated to his left leg, with onset at the time of the injury. The Veteran had decreased mobility, spasm, crepitus, and difficulty going to sleep due to popping and pain. A March 2014 magnetic resonance imaging (MRI) revealed anterolisthesis L4 on L5 with a bulging disc eccentric to the right, central disc herniation L5-S1 with annular tear, facet joint arthritis L1-2 to L5-S1 bilaterally with cystic changes of the facet joints at L4-5 bilaterally, and no evidence of compression fracture. The physician found that the findings appeared to be chronic in nature. An April 2015 VA examination report reflects diagnoses of a lumbar strain, resolved; and degenerative disc disease (DDD) of the lumbar spine that was not due to the service-connected lumbosacral strain. The VA examiner noted that the Veteran's lumbar strain was service connected and was considered resolved; however, the examiner reviewed current medical literature and the Veteran's claims file, and found that there was no objective evidence to support a nexus for the Veteran's DDD of the lumbar spine as due to, cause by, or aggravated by the resolved service-connected lumbar strain. The examiner noted that a private treatment record from July 2013 documented low back and leg pain that onset acutely after a work-related injury that same month. Further, an MRI that month diagnosed DDD of the lumbar spine. The examiner noted that the diagnosis of DDD of the lumbar spine was approximately 23 years after Veteran's treatment for lumbar strain, and that there was no objective evidence that the DDD of the lumbar spine was due to active duty service. As such, the examiner opined that the Veteran's signs and symptoms were consistent with the non-service connected DDD lumbar spine. Private treatment records in 2015 document worsening back pain that radiated to the legs, with numbness in the plantar aspect of each foot. An examination revealed findings consistent with a diagnosis of lumbar radiculopathy and chronic low back pain associated with poor muscular stability and bilateral lower extremity weakness affecting activities of daily living. The Veteran's range of motion was flexion to 30 degrees, extension to 25 degrees, right and left lateral rotation to 80 percent, right lateral flexion to 8 degrees, and left lateral flexion to 15 degrees. As a preliminary matter, the evidence shows that the Veteran suffered a work-related injury to his lumbar spine in July 2013 and had a diagnosis of DDD of the lumbar spine in March 2014. The April 2015 VA examiner, after reviewing both the medical literature and the Veteran's claims file, opined that the Veteran's service-connected lumbosacral strain was resolved, and that the DDD of the lumbar spine was not the result of or aggravated by the service-connected lumbosacral strain. The examiner specifically found that the Veteran's signs and symptoms of lumbar spine were due to his nonservice-connected DDD of the lumbar spine. As such, the Board finds that the Veteran's symptoms of back pain and lumbar radiculopathy after July 2013 are due to his nonservice-connected DDD of the lumbar spine and not his service-connected lumbosacral strain, which, as per the April 2015 VA examiner, was resolved. The evidence reflects that in December 2007 the Veteran's range of motion was flexion to 80 degrees, extension to 45 degrees, bilateral bending to 40 degrees, and bilateral rotation to 30 degrees; with no additional limitation of motion after repetition and no additional neurological problems, to include radiculopathy and incontinence. Likewise, in March 2011, the Veteran's range of motion was flexion to 80 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees; with no objective evidence of pain on active range of motion, no bowel of bladder problems, and no evidence of radiculopathy of the lower extremities. The Board finds that the findings of the examination are sufficient to satisfy the Deluca and Mitchell criteria. Therefore, the Board does not find that an evaluation in excess of 10 percent for the entirety of the appeal period is warranted. See 38 C.F.R. § 4.71(a), General Rating Formula. The Board has also considered the Veteran's contentions that his lumbosacral strain is more disabling than his currently evaluated 10 percent rating. As noted above, the Board acknowledges that the evidence shows that the Veteran has a range of motion of flexion to 30 degrees starting in 2015. However, as explained, the April 2015 VA examiner specifically found that the Veteran's back symptoms were due to his DDD of the lumbar spine and not his service-connected lumbosacral strain. When the interpretation of objective medical tests are involved, lay evidence is not competent to assess the severity of the disorder. Thus, in this case, the Veteran is not competent to render an opinion with respect to the severity or etiology of his condition. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, the Veteran's lay statements with respect to the severity of his service-connected lumbosacral strain do not constitute competent evidence and have little to no probative value. Consideration has been given to an increased evaluation for the Veteran's lumbar spine disability under other potentially applicable diagnostic codes. See Schafrath, 1 Vet. App. at 595. The evidence does not reflect that the Veteran has a diagnosis of IVDS. Thus, a rating under IVDS is not warranted in this case. Lastly, the Board finds that the Veteran does not have other neurological disorders related to his service-connected back disability. As stated above, the evidence shows that the Veteran has lumbar radiculopathy; however, this diagnosis is related to his nonservice-connected DDD of the lumbar spine and not his service-connected back disability. Further, the Veteran denied any bowel or bladder symptoms. Thus, the Board finds that no other separate rating for neurological disabilities is warranted. The Board has also considered whether staged ratings would be warranted; however, the evidence of record does not show that an evaluation in excess of 10 percent for lower back strain would be warranted at any time during the period on appeal. 38 U.S.C.A. § 5110 (West 2014); see also Fenderson, 12 Vet. App. at 119. The above determinations are based on consideration of the applicable provisions of VA's rating schedule. For all the foregoing reasons, the Board finds that the claim for an evaluation in excess of 10 percent for lumbosacral strain for the entirety appeal period must be denied. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237. Further, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). III. 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 service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things, (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Consistent with this framework, service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system such as tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a); VA Adjudication Manual, M21-1, IV.ii.2.B.2.b (Mar. 2, 2017) (noting that Compensation Service has determined that sensorineural hearing loss constitutes an organic disease of the nervous system); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding the 38 C.F.R. "§ 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[ ] of the nervous system'"). In relevant part, 38 U.S.C.A. § 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). STRs in October 1988 reflect that the Veteran complained of a high noise work environment and subjective hearing loss. A November 2010 private treatment record documents complaints of ringing in the ears for the past year and a diagnosis of tinnitus. A March 2011 VA examination report reflects onset of tinnitus approximately one month ago. The examiner opined that the etiology for the Veteran's tinnitus could not be determined on the basis of the available information without resorting to speculation. The examiner noted that the Veteran reported tinnitus several years after his separation from service and that the record did not show any complaints of tinnitus during service or within one year of military noise exposure. The examiner also opined that it was possible that non-organic hearing loss and recent dizziness contributed to the Veteran's tinnitus, but that it would be speculative to allocate a portion of his current tinnitus to each of these etiologies. VA treatment records in January 2012 indicate complaints of tinnitus since service. Further, in January 2012, the Veteran's physician diagnosed bilateral tinnitus and noted that he worked on an aircraft carrier while in the US Navy and was exposed to loud noises on a regular basis. The examiner opined that the Veteran sustained bilateral tinnitus that was service connected. An April 2015 VA examination report reflects that the Veteran reported longstanding, bilateral constant tinnitus. STRs were silent for this complaint and the examiner noted that there was no significant in-service threshold shift for hearing loss. As such, in the absence of an objectively verifiable noise injury, the examiner opined that the association between claimed tinnitus and noise exposure could not be assumed to exist. At the outset, the Board finds that the evidence demonstrates that the Veteran has a current tinnitus disability. The Board notes that the Veteran's military occupational specialty was radio and communication operator, a setting in which he was exposed to considerable acoustic trauma without ear protection. His exposure to acoustic trauma in service is established as consistent with the circumstances of his service. The Board notes that, while the Veteran's STRs do not document the occurrence of, or treatment for, any specific incident of acoustic trauma, the Veteran is competent to assert the occurrence of an in-service injury, to include noise exposure. See Gottveit v. Brown, 5 Vet. App. 91 (1991). Thus, the question is one of nexus. The Board finds that the VA audiologists did not provide a probative opinion. Specifically, the April 2015 VA examiner seemed to require confirmatory evidence in the STRs that is contrary to court precedent, and the March 2011 VA examiner stated that that the etiology for the Veteran's tinnitus could not be determined on the basis of the available information without resorting to speculation. The only probative evidence consists of the Veteran's reports that he experienced tinnitus during and since service. The Board acknowledges that in November 2010, the Veteran reported that he had experienced tinnitus for approximately one year; however, in January 2012, the Veteran reported to his physician that it had onset during service. The Board finds the Veteran credible as to his January 2012 statements, especially in light of the fact that he made them to his treating physician two years prior to the filing of his May 2014 service connection claim. The Board finds no reason to question the veracity of the Veteran's assertions in this regard, and such assertions are deemed credible. See White v. Illinois, 502 U.S. 346, 355-56 (1991) (holding that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). See also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Service connection may be granted upon a finding of continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. 38 C.F.R. §§ 3.303 (b), 3.309 (listing organic diseases of the nervous systems, which has been interpreted to sensorineural hearing loss as a chronic disease. In view of the totality of the evidence, including the Veteran's likely in-service noise exposure and his credible statements, the Board finds that the probative evidence of record is at least in equipoise as to the question of service connection and that tinnitus is as likely as not due to noise exposure during his period of active service. Under such circumstances, with the resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection bilateral hearing loss and tinnitus is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is denied. Entitlement to service connection for tinnitus is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs