Citation Nr: 1800155 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-08 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a low back disability, to include degenerative disc disease of the lumbar spine with radiculopathy. REPRESENTATION Appellant represented by: Paul Bunn, Agent ATTORNEY FOR THE BOARD C. Casey, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1975 to June 1981. He also had additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In November 2015, the Board remanded these claims to secure service treatment records (STRs) and VA medical records, schedule VA audiology and back examinations, and to obtain VA medical opinions regarding the nature and etiology of the Veteran's current hearing loss, tinnitus, and low back pain. The Veteran was scheduled to appear for a hearing with a Veterans Law Judge (VLJ) in March 2015. The Veteran requested the hearing be re-scheduled. The Veteran's hearing was rescheduled for June 2015 and he failed to attend. The Veteran has provided no explanation for his failure to report and has not since requested that the hearing be rescheduled. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2017). The issue of bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The currently demonstrated tinnitus was caused by in-service exposure to excessive and harmful noise in connection with the Veteran's duties. 2. Low back pain is not related to the Veteran's active service, including his in-service motor vehicle accident, and did not manifest to a compensable degree within a year of his discharge from such service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria to establish service connection for a back condition are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that while he was in active service, he was exposed to loud machinery, such as generators, which is the cause of his current bilateral hearing loss and tinnitus. The Veteran also contends that he was involved in a motor vehicle accident during active service, in March 1981, which is the cause of his current lower back pain. The Board notes that the Veteran's service treatment records from the period of December 1975 to June 1981 are not of record and are determined to be unavailable. See July 2011 Formal Finding of Unavailability of Service Records. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Giving the benefit the doubt to the Veteran and finding no evidence to the contrary, the Board accepts the Veteran's credible statements that he was exposed to loud noise and involved in a motor vehicle accident while in service. Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Specifically, VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim, which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). VA is also to assist this claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination or obtaining a medical opinion. 38 U.S.C. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). Here, the Veteran does not assert that VA violated its duty to notify, that there are any outstanding records that need to be obtained on his behalf, or that the VA examinations he underwent in support of this claim were inadequate. No further notification or assistance is thus necessary. Legal Criteria 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, a grant of service connection is available on a presumptive basis. Service connection may be presumed for certain chronic conditions such as organic diseases of the nervous system, which includes sensorineural hearing loss, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of at least 10 percent within one year of the date of discharge from service. 38 U.S.C. §§ 1101, 1112(a), 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Analysis Tinnitus The Veteran contends that his tinnitus is the result of exposure to hazardous noise during his active duty service. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. The Veteran has a diagnosis of tinnitus, which is a diagnosis capable of lay observation. The Veteran is competent to report when he first experienced tinnitus and that the symptoms have continued since service. Charles v. Principi, 16 Vet. App. 370 (2002); Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). At the May 2016 VA audiology examination, the examiner found there was no evidence in the record to support that tinnitus was casually related to noise injury. The examiner concluded that, in the absence of an objectively verifiable noise injury, the associate between claimed tinnitus and noise exposure is speculative. However, the Board finds the statements of the Veteran regarding his tinnitus since service discharge competent and credible. In this case, the Veteran was exposed to acoustic trauma in service, and he maintains that his tinnitus arose at that time or soon thereafter. He credibly asserts that the tinnitus has been persistent since that time. Under the circumstances, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Low back pain The record shows that the Veteran suffers from degenerative disc disease of the lumbar spine. The Veteran contends this disability is due to an injury sustained in a 1981 automobile accident while on active duty. As discussed above, the Veteran's active duty STRs are unavailable, so the Board accepts the Veteran's credible statements that he was involved in a motor vehicle accident in service. The record does contain a medical examination completed in June 1981, the month of the Veteran's separation from active duty. At this examination, the Veteran affirmatively denied recurrent back pain and a clinical examination revealed no spinal or other musculoskeletal abnormalities. The Veteran's PUHLES profile was all marked as "1." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The record does not show evidence of low back pain until a May 1994 medical examination, 13 years after separation from active service. This includes multiple National Guard physicals from 1981 to 1994 where he affirmatively denied any back pain or back issues. At the 1994 examination, the Veteran reported recurrent back pain, but also reported he was in good health, was not taking any medication, and was not limited by his low back pain. A May 1996 medical examination makes no mention of low back pain or any spinal abnormalities. During a May 2016 VA back examination the Veteran was diagnosed with degenerative disc disease of the lumbosacral spine with occasional radiculopathy. After a review of the medical record and physical examination, the examiner found that the data did not support that the current back condition was caused by a motor vehicle accident while on the line of duty. The examiner noted that the STRs after the accident occurred (the National Guard records after active service) did not support a nexus to the current disability. The examiner reviewed the Veteran's claims file, the examination, and the results of testing in arriving at this conclusion. The examiner considered all pertinent and available medical facts to which the Veteran is entitled in forming his opinion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) Furthermore, the Board is persuaded by the lack of complaints or diagnoses of back and neck conditions in the medical records until 1994. Although the absence of any mention of relevant complaints or symptoms after service is not dispositive, the fact of this chronology must be considered as it bears upon the question of nexus between the Veteran's claimed disability resulting from service and his current diagnosis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and can weigh against the claim). The Board has considered the Veteran's statements regarding his low back pain. Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran's accounts of in-service low back pain are simply not supported by the medical evidence of record. The first reports of low back pain occurred in 1994, 13 years after separation from active service. Moreover, a medical examination at the time of active duty separation did not show any spinal or musculoskeletal abnormalities. No other evidence or valid test results in the record show that an etiological relationship exists between the Veteran's low back pain and the in-service motor vehicle accident, thus remanding for another opinion on that issue would not aid the claimant in obtaining evidence to substantiate his claim or to place that theory of entitlement "within the range of possibility as distinguished from pure speculation or remote possibility." Mariano v. Principi, 17 Vet. App. 305, 312 (203); 38 U.S.C. § 5103A (a)(2); 38 C.F.R. § 3.102. The Board also considered whether a grant of service connection is available on a presumptive basis. Here, the Veteran is competent to report low back pain during service. However, there is no medical evidence that the Veteran had low back pain within a year of his discharge from service. The Veteran was discharged from active service in June 1981 and there is no record of low back pain or radiculopathy within a year of discharge. In sum, the competent evidence of record weighs against the Veteran's assertion that his low back pain is etiologically related to his active service. Although grateful for the Veteran's honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection for low back pain and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107. ORDER Service connection for tinnitus is granted. Service connection for a low back disability, to include degenerative disc disease of the lumbar spine, is denied. REMAND The Board finds that another examination is necessary to obtain an updated opinion regarding the etiology of the Veteran's bilateral sensorineural hearing loss. At a May 2016 VA audiology examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss was not related to his active duty military service. The examiner did note hearing loss in audiograms dated October 1985, May 1990, May 1994, and May 1996. However, the examiner reasoned that the Veteran's hearing loss was not connected to service because the Veteran's hearing was within normal limits at a June 1981 audiogram on separation. On remand, the examiner will be asked to comment on the line of studies conducted by Dr. Sharon Kujawa, who has found support for delayed onset hearing loss. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA and private medical treatment records for bilateral hearing loss. 2. Make arrangements to obtain a VA examination and medical opinion regarding whether it is as likely as not (50 percent or greater probability) that bilateral hearing loss was caused by service. The examiner is asked to review the file prior to the examination. The VA has conceded acoustic trauma from exposure to generators and laundry equipment. The May 2016 VA examiner opined against a relationship, finding no basis for delayed onset hearing loss. The examiner is therefore asked to comment on the line of studies conducted by Dr. Sharon Kujawa, including the following: a. "Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth" by S. Kujawa, M.D., and M. C. Liberman (2006). J Neurosci. 2006 Feb 15; 26(7): 2115-2123. b. Kujawa SG, Liberman MC (2009) Adding insult to injury: cochlear nerve degeneration after "temporary" noise-induced hearing loss. J Neurosci. 2009 Nov 11; 29(45):14077-85. c. Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift. JARO 12:605-616. d. Furman AC, Kujawa SG, Libermann MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates. J. Neurophysiol.110, 577-586. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs