Citation Nr: 18145547 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-33 024 DATE: October 29, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for low back problems is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s current tinnitus is etiologically related to active service. 2. A preponderance of the evidence is against a finding that the Veteran’s current low back problems are related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for low back problems have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1983 to September 1986. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities are presumed to be service connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Entitlement to service connection for tinnitus. In this case, the Board acknowledges that in an October 2015 VA examination report, the Veteran was diagnosed with tinnitus. In a December 2014 VA medical report, the audiologist opined that the Veteran’s tinnitus was at least as likely as not due to noise exposure during active service. In an October 2015 VA examination report, the examiner opined that the Veteran’s tinnitus was related to his hearing loss, but gave no opinion whether it was directly related to active service. In a May 2016 VA opinion, the examiner opined that the Veteran’s tinnitus was less likely than not incurred in or caused by an in-service injury, event, or illness. Weighing the available evidence, the Board finds that the December 2014 VA medical report, concluding that the Veteran’s tinnitus was etiologically related to active service, combined with the competent and credible lay statements from the Veteran, are of at least equal probative value to the May 2016 VA examiner’s negative nexus opinion. The Board thus finds that it is at least as likely as not that the Veteran’s tinnitus is etiologically related to active service. Accordingly, the criteria for service connection have been met, and the claim is granted. Entitlement to service connection for low back problems. The Veteran asserts that his current back problems are etiologically related to active service. In this case, the Board acknowledges that in a June 2014 private treatment report, the Veteran was diagnosed with lumbosacral spondylosis without myelopathy. The Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnoses associated with his low back. There is no medical evidence determining that the Veteran’s low back problems were in any way related to or caused by his active service. A February 1999 United States Department of Labor medical report noted that the Veteran injured his lower back when he climbed over a set of haystacks, but the Board notes that this incident occurred after the Veteran had left active service. Other than the Veteran’s September 2015 statement and private treatment records, that showed that he was treated for low back problems after service, the Veteran has not submitted any evidence to support his claim, and there is nothing in his claims file to support the claim. The Board notes that while the Veteran’s medical records show that he was treated for low back problems, and injured his back in 1999, they did not contain a nexus opinion or provide an etiology as related to the Veteran’s active service. The Board further notes that the passage of time between the Veteran’s discharge and an initial diagnosis for his low back problems is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Veteran is competent to observe his back symptoms, he does not have the training or credentials to provide a competent opinion as to a specific diagnosis or the onset date of such diagnosis concerning his low back problems and whether they are related to his time in the military. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Given the complete dearth of evidence of record supporting this claim, the Board will not be remanding for a VA examination and an etiology opinion in this matter, as there exists no reasonable likelihood that any examination findings or opinion would be favorable in this instance. 38 C.F.R. § 3.159(c)(4). As a result, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss. In a February 2015 United States Department of Health and Human Services hearing conservation letter, it was noted that the Veteran had abnormal hearing. In an October 2015 VA examination report, the Veteran had hearing loss for VA purposes, but the examiner wrote that the test results were not valid for rating purposes. The examiner noted that the Veteran’s pure tone responses were inconsistent and unreliable. Likewise, the examiner reported that the Veteran’s speech discrimination scores were also not valid. Despite this, the Veteran was still diagnosed with bilateral sensorineural hearing loss. The examiner opined that it was less likely than not that the Veteran’s hearing loss was etiologically related to active service. In December 2015 and May 2016 VA addendum opinions, the examiners explained why the October 2015 examination results were inconsistent with the Veteran’s prior audiology results, and as a result, why his hearing was not as bad as recorded. Because of the conflicting medical evidence, a new VA examination is necessary to determine if the Veteran has a current hearing loss disability, and if so, whether it is etiologically related to active service. 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all VA and private treatment records concerning this claim. 2. After the above has been completed, schedule the Veteran for a VA audiological examination, by an appropriate clinician, to determine the nature and etiology of any diagnosed bilateral hearing loss. If a hearing loss disability is diagnosed following testing, the examiner must opine whether it is at least as likely as not (a 50 percent probability or greater) related to an in-service injury, event, or disease, to include acoustic trauma during active service. The examiner must review the claims file, to include the February 2015 Health and Human Services report and the October 2015 VA examination report, noting that the Veteran’s hearing was abnormal, and provide a compete rationale for all opinions rendered. (Continued on the next page)   All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel