Citation Nr: 1804876 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-29 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for left paravertebral muscle pull, claimed as unspecified muscle pull (now on appeal as lumbar spine disability). 2. Entitlement to service connection for a lumbar spine disability as secondary to service-connected knee disabilities. 3. Entitlement to service connection for a bilateral hearing loss disability. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. He also had subsequent service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned at a Board hearing held via videoconferencing technology in September 2017. The transcript is of record. FINDINGS OF FACT 1. In an unappealed January 2009 decision, the RO denied the Veteran's claim for service connection for left paravertebral muscle pull, claimed as unspecified muscle pull; the Veteran did not appeal this determination, and new and material evidence was not received within a year of its issuance. 2. The evidence received since the January 2009 rating decision directly relates to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disability. 3. The preponderance of the evidence shows that the Veteran's lumbar spine degenerative disease is caused by his service-connected knee disabilities. 4. The Veteran experienced noise exposure during service; current audiometry testing shows a hearing loss disability for VA purposes; and the evidence is at least evenly balanced as to whether the hearing loss disability is a result of the in-service noise exposure. 5. The evidence is at least evenly balanced as to whether the Veteran's tinnitus is a result of the in-service noise exposure. CONCLUSIONS OF LAW 1. The January 2009 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the previously denied claim for service connection for left paravertebral muscle pull, claimed as unspecified muscle pull. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Lumbar spine degenerative disease is the result of service-connected right and left knee disabilities. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. With reasonable doubt resolved in favor of the Veteran, bilateral hearing loss disability was incurred in active service. 38 U.S.C. §§ 1110, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 5. With reasonable doubt resolved in favor of the Veteran, tinnitus was incurred in active service. 38 U.S.C. §§ 1110, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C.§ 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied service connection for left paravertebral muscle pull in a January 2009 rating decision, finding that there was no evidence of a current diagnosis or a chronic disability. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the January 2009 decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence received since the January 2009 denial of the claim includes a current diagnosis of a lumbar degenerative disc disease. See February 2016 Dr. D.S. Letter. This evidence relates to the basis for the prior denial. The additional evidence received since the January 2009 previous denial is thus new and material. The criteria for reopening the claim for service connection for a lumbar spine disability have therefore been met. II. Service Connection A. Relevant Law 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; 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). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. Lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (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, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); see also Jandreau, 492 F.3d 1376-77. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). B. Discussion (1) Lumbar Spine Disability The Veteran specifically contends that his lumbar spine disability is the result of his gait problems due to his service-connected right knee strain with osteoarthritis and service-connected degenerative joint disease of his left knee, associated with his right knee. See Bd. Hr'g. Tr. at 10-11. As noted, Dr. D.S. indicated in a February 2016 letter that the Veteran has lumbar spine degenerative disc disease. He has thus met the current disability requirement. As there is a current disability and a primary service-connected disability (bilateral knees), the dispositive issue is whether the lumbar spine disability is proximately due to or the result of the service-connected knee disabilities. On this issue, Dr. D.S., wrote that the Veteran's "lumbar degenerative disc disease is secondary to the same stress/trauma which caused his bilateral knee osteoarthritis. [He] also believe[s] that [the Veteran's] abnormal gait mechanics and decreased mobility due to his bilateral knee osteoarthritis also contributes to his progressive low back pain." Dr. D.S.'s explanation is brief, but clear, understandable, and all inferences appear to follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). This reasoning is also consistent with the Veteran's testimony describing the impact that his knees have on his back. The opinion is therefore entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no other probative evidence that contradicts Dr. D.S.'s opinion. The preponderance of the evidence thus reflects that the Veteran's service connected knee disorders caused his lumbar spine degenerative disease. Entitlement to service connection for lumbar spine degenerative disease on a secondary, causation basis is therefore warranted. (2) Bilateral Hearing Loss Disability The Veteran avers that he has a bilateral hearing loss disability due to noise exposure in service. He testified that as a combat engineer in service, he supported the infantry, specifically combat troops, by building bridges and roads, and worked with cranes, dozers, graters in the context of construction work. See Bd. Hr'g. Tr. at 6. He first noticed post service hearing loss around 2008. See Bd. Hr'g. Tr. at 7. First, the Board finds that the Veteran has a valid bilateral hearing loss disability for VA purposes. A VA examination was administered in April 2013 where audiological tests were performed and its results recorded, but the VA examiner indicated that these tests were invalid because the Veteran's pure tone average and speech reception threshold were not in "good agreement." The results of the audiometric testing (in decibels) were recorded on a graph by Xs and Os. When reading the graph, it is clear to the Board that auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz was 40 decibels or greater for both ears. See April 2013 VA examination. Additionally, results of the Maryland CNC Speech Test were recorded as 80 percent for the right ear and 52 percent for the left ear; these values are less than 94 percent. See 38 C.F.R. § 3.385. The Board's interpretation of the testing results is such that a hearing loss disability is established by VA standards. The Board has fact finding authority to discuss the audiological results presented on this graph and translate them into numerical format. Kelly v. Brown, 7 Vet. App. 471, 474 (1995); see also McKinney v. McDonald, 28 Vet. App. 15, 23 (2016) ("by explaining the medical basis for the naval examiner's interpretation of the audiometric test results, Hensley provided the Board" with a basis for discerning the significance of the contemporaneously recorded audiology test results). Furthermore, although there was some question as to the validity of the results, the audiometric and speech recognition scores provide a sufficient basis on which to find that the Veteran has met the current disability requirement. To the extent that there is reasonable doubt as to the validity of the test, the Board resolves this doubt in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The first element of service connection has therefore been established. As to the second element of in-service incurrence, there is no material dispute regarding positive noise exposure in service. The Veteran's military occupational specialty was a combat engineer and his testimony described his work with loud equipment. As he is competent to testify as to his observations, and as his statements regarding in-service noise exposure are consistent with the circumstances of his service, the Board accepts that the Veteran was exposed to loud noise in service. See 38 U.S.C.§ 1154(a); 38 C.F.R. § 3.303(a)(each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Finally, addressing nexus, the Board finds that the evidence is at least evenly balanced on the question of nexus. On one hand, there is the April 2013 VA examiner who offered a negative nexus opinion due to the fact that she did not find the results of the audiometric testing to be valid; no other factors were taken into consideration. On the other hand, the Veteran has presented competent and credible testimony as to the onset and nature of his bilateral hearing loss disability. He first noticed his hearing loss in 2008, but he explained that he was subject to loud noises when carrying out his military duties and he did not pay much attention to the impact of noise on his hearing in service. See Bd. Hr'g. Tr. at 3-4. The Board accepts the Veteran's statements as to the onset of his hearing loss in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). The evidence is thus approximately evenly balanced on the elements of current disability and nexus. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss disability is warranted. See 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102. (3) Tinnitus The Veteran contends that he has tinnitus due to loud noise exposure in service. While he noticed ringing in his ears around 2013, he believes this was a gradual worsening over many years. See Bd. Hr'g. Tr. at 4, 7-8. The Board finds that the Veteran has a current tinnitus disability as the Veteran has indicated that he has tinnitus in both ears. Such observable symptoms (e.g., ringing in the ears) are within the competence of a lay person to identify. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Second, there is no material dispute that the Veteran was exposed to noise during service. Again, his statements as to noise exposure are consistent with the circumstances of his service. See 38 U.S.C.§ 1154(a). Accordingly, an in-service injury is established. Finally, the evidence tends to make it at least as likely as not that the Veteran's tinnitus is related to service. The April 2013 VA examiner provided a negative nexus opinion for tinnitus using the same rationale that she did for hearing loss-invalid testing. This opinion has no probative value since tinnitus is the type of condition that is within the competence of a lay person to identify as present. See Charles, 16 Vet. App. at 374. The Board is left with competent and credible statements from the Veteran regarding the onset of his tinnitus. Accordingly, a nexus between the tinnitus and the noise exposure during service is established by the Veteran's lay testimony. See 38 C.F.R. § 3.303(a). In light of the foregoing, the Board finds that the evidence is at least evenly balanced as on the element of nexus. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. See 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102. ORDER The application to reopen the previously denied claim for service connection for left paravertebral muscle pull, claimed as unspecified muscle pull, is granted. Service connection for lumbar spine degenerative disease is granted. Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs