Citation Nr: 18148944 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-33 526 DATE: November 8, 2018 ORDER The application to reopen the claim of service connection for bilateral hearing loss is denied. The application to reopen the claim of service connection for tinnitus is denied. New and material evidence having been received, the claim of entitlement to service connection for a low back condition characterized as lumbosacral strain and degenerative disc disease of the lumbar spine is reopened, and to this extent only, the appeal is granted. Entitlement to service connection for a low back condition characterized as lumbosacral strain and degenerative disc disease of the lumbar spine is granted. FINDINGS OF FACT 1. Claims for service connection for bilateral hearing loss and tinnitus were denied in an unappealed May 2010 rating decision. 2. Evidence submitted since the May 2010 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and therefore does not raise a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. Evidence submitted since the May 2010 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and therefore does not raise a reasonable possibility of substantiating the claim of service connection for tinnitus. 4. A claim for service connection for degenerative disc disease of the lumbar spine was denied in an unappealed February 2010 rating decision. 5. The evidence received since the February 2010 rating decision is neither cumulative nor redundant and raises a reasonable probability of substantiating the claim for service connection for a low back condition. 6. The Veteran’s current low back condition characterized as lumbosacral strain and degenerative disc disease of the lumbar spine began during active service. CONCLUSIONS OF LAW 1. The May 2010 rating decision, which denied service connection for bilateral hearing loss and tinnitus, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has not been received since the May 2010 rating decision; thus, the claim of service connection for bilateral hearing loss is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has not been received since the May 2010 rating decision; thus, the claim of service connection for tinnitus is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The February 2010 rating decision, which denied service connection for degenerative disc disease of the lumbar spine, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 5. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. The criteria for entitlement to service connection for a low back condition characterized as lumbosacral strain and degenerative disc disease of the lumbar spine, are met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from November 1982 to December 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In his August 2014 substantive appeal, the Veteran requested a hearing by a Regional Office (RO) Decision Review Officer. In September 2014 the Veteran submitted a written request to withdraw his request for a hearing; the Veteran’s hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.702(e). New and Material In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 C.F.R. § 5108. New evidence is defined as evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus, supra. In Shade, the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The evidence that is considered in determining whether new and material evidence has been submitted is that received by VA since the last final disallowance of the appellant’s claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss In May 2010, the RO denied service connection for bilateral hearing loss essentially based on a finding that the Veteran did not have a current diagnosis of bilateral hearing loss and that his claimed disability was not related to service. The Veteran did not appeal this decision and it is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In February 2012, the Veteran submitted a new claim for entitlement to service connection for bilateral hearing loss. At the time, the Veteran did not submit any additional evidence regarding his claim for entitlement to service connection for bilateral hearing loss. In June 2012, the RO denied service connection for bilateral hearing loss finding that new and material evidence had not been submitted. The Veteran disagreed with the decision and perfected this appeal. After a review of the evidence, as discussed below, the Board finds that no new and material evidence has been received since the May 2010 rating decision which denied service connection for bilateral hearing loss. At the outset, the Board notes that following the May 2010 rating decision, no additional service department records were associated with the record. Accordingly, the Board will proceed with the new and material analysis under 38 C.F.R. § 3.156(a). Relevant evidence of record at the time of the May 2010 decision included military personnel records, service treatment records, VA treatment records and the Veteran’s statements. In March 2010, the Veteran stated that he was a bulk fuelman in service and was responsible for refueling jets, tanks and jeeps. On one occasion he was exposed to a loud noise from one of the fuel pumps. He was not wearing hearing protection at the time and his ears started ringing loudly. After a while, the ringing calmed down, but he continued to have ringing in his ears. The Veteran served in the United States Marine Corps from November 1982 to December 1986. The Veteran’s DD-214 notes that the Veteran’s military occupational specialty (MOS) was bulk fuel specialist. Service treatment records are silent as to any complaints, treatment or clinical diagnosis for hearing loss. A September 1986 Report of Medical Examination, revealed right ear decibel thresholds of 15, 5, 5, and 5 dB and left ear decibel thresholds of 10, 15, 5, and 10 dB at frequencies of 1000, 2000, 3000, and 4000 Hertz. The Veteran was afforded a VA examination in May 2010, which found that the Veteran’s hearing was within normal limits bilaterally. The examiner opined that it was less likely than not that the Veteran’s hearing loss was due to the Veteran’s service as a fuel specialist who was exposed to aircraft, tanks, trucks, etc. The examiner noted that the Veteran’s service treatment records reveal that the Veteran’s hearing was within normal limits throughout active duty service with no significant change in hearing. Relevant evidence received since the May 2010 final decision includes VA treatment records and the Veteran’s statement. In May 2013, the Veteran stated that he was exposed to a loud noise from one of the fuel pumps. He was not wearing hearing protection at the time and his ears started ringing, and his ears continued ringing any time he would refuel any loud vehicles. The Veteran’s statement is not new evidence, and it does not establish a nexus between the Veteran’s claimed hearing loss disability and service. Although, an August 2012 VA treatment record reflected a diagnosis of bilateral sensorineural hearing loss. An August 2012 VA treatment record indicates that the Veteran’s hearing was within normal limits for VA purposes. The August 2012 VA treatment record, revealed right ear decibel thresholds of 20, 30, 30, 25, and 15 dB and left ear decibel thresholds of 25, 25, 30, 25, and 15 dB at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. For VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz 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. Further, the Board notes that the August 2012 treatment provider did not provide an opinion regarding the etiology of the Veteran’s bilateral hearing loss. The August 2012 VA treatment records are not new and material evidence, they do not establish that the Veteran has a current hearing loss disability for VA purposes, and they do not establish a nexus between the Veteran’s claimed hearing loss disability and service. Therefore, the Board finds that with regard to the claim of service connection for bilateral hearing loss, no new and material evidence has been received since the May 2010 rating decision, and the Veteran has not submitted evidence to establish a current hearing loss disability for VA purposes or a nexus between the Veteran’s claimed hearing loss disability and service. Notably, although the Veteran stated in March 2010 and May 2013 that he experienced ringing in his ears in service, the Veteran does not claim that he experienced loss of hearing while in service or within one year of separation from service. Additionally, although the August 2012 VA treatment record reflected a diagnosis of bilateral sensorineural hearing loss; the August 2012 VA treatment record indicates that the Veteran’s hearing was within normal limits for VA purposes. Thus, there is not sufficient new and material evidence to warrant a reopening of the claim of service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus In May 2010, the RO denied service connection for tinnitus essentially based on a finding that the Veteran’s tinnitus was not related to service. The Veteran initiated an appeal of this denial, but did not perfect his appeal, and thus, the rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In February 2012, the Veteran submitted a new claim for entitlement to service connection for tinnitus. At the time, the Veteran did not submit any additional evidence regarding his claim for entitlement to service connection for tinnitus. In June 2012, the RO denied service connection for tinnitus finding that new and material evidence had not been submitted. The Veteran disagreed with the decision and perfected this appeal. After a review of the evidence, as discussed below, the Board finds that no new and material evidence has been received since the May 2010 rating decision which denied service connection for tinnitus. At the outset, the Board notes that following the May 2010 rating decision, no additional service department records were associated with the record. Accordingly, the Board will proceed with the new and material analysis under 38 C.F.R. § 3.156(a). Relevant evidence of record at the time of the May 2010 decision included military personnel records, service treatment records, VA treatment records and the Veteran’s statements. In March 2010, the Veteran stated that he was a bulk fuelman in service and was responsible for refueling jets, tanks and jeeps. On one occasion he was exposed to a loud noise from one of the fuel pumps. He was not wearing hearing protection at the time and his ears started ringing loudly. After a while, the ringing calmed down, but he continued to have ringing in his ears. The Veteran served in the United States Marine Corps from November 1982 to December 1986. The Veteran’s DD-214 notes that the Veteran’s military occupational specialty (MOS) was in bulk fuel specialist. Service treatment records are silent as to any complaints, treatment or clinical diagnosis for tinnitus. The Veteran was afforded a VA examination in May 2010, which reflected a diagnosis of tinnitus. The examiner opined that it was less likely than not that the Veteran’s tinnitus was due to the Veteran’s service as a fuel specialist who was exposed to aircraft, tanks, trucks, etc. The examiner noted that the Veteran’s service treatment records reveal that the Veteran’s hearing was within normal limits throughout active duty service with no significant change in hearing. The service treatment records were also negative for complaints of tinnitus during active duty service. Relevant evidence received since the May 2010 final decision includes the Veteran’s statement. In May 2013, the Veteran stated that he was exposed to a loud noise from one of the fuel pumps. He was not wearing hearing protection at the time and his ears started ringing, and his ears continued ringing any time he would refuel any loud vehicles. The Veteran’s statement is not new evidence as it is essentially duplicative of his prior statements and contentions that were considered in the prior final rating decision. Therefore, the Board finds that with regard to the claim of service connection for tinnitus, no new and material evidence has been received since the May 2010 rating decision, which denied service connection for tinnitus, and the Veteran has not submitted evidence to establish a nexus between the Veteran’s current diagnosis of tinnitus and service. Thus, there is not sufficient new and material evidence to warrant a reopening of the claim of service connection for tinnitus. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. Whether new and material evidence has been received to reopen a claim of service connection for degenerative disc disease of the lumbar spine In February 2010, the RO denied service connection for degenerative disc disease of the lumbar spine essentially based on a finding that the disability was not related to service. The Veteran initiated but did not perfect and appeal of this decision, and thus, it is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since that time, relevant additional evidence suggests a nexus between currently diagnosed back strain and degenerative disc disease and military service. This evidence, evidence not previously submitted to decisionmakers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). Thus, the claim is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). 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 arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree (10 percent disabling) within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). 4. Entitlement to service connection for a low back condition characterized as lumbosacral strain and degenerative disc disease of the lumbar spine The Veteran seeks service connection for low back condition, which he asserts is related to service. In November 2009, the Veteran stated that his lower back had been hurting him since 1984. In May 2013, the Veteran stated that he had been in pain for many years due to a jeep accident. The Veteran stated that he treated his back pain with drugs and alcohol, until he decided to seek treatment for addiction in 2009, which is when he realized how the severity of his back disability. As noted, the Veteran served in the United States Marine Corps from November 1982 to December 1986. February 1984 and June 1984 service treatment records reflect a diagnosis of low back muscle strain. The Veteran reported that he had low back pain in December 1983, and was in a car accident in January 1984, which caused his back pain to reoccur. In May 2013, fellow service members reported that during service in 1984 the Veteran was involved in a motor vehicle accident; he was treated the same day and placed on light duty. In May 2013, the Veteran’s former spouse stated that she was married to the Veteran in 1984, and that he came home one evening and stated that he had been in accident earlier that day, and that his low back was hurting him, and after that his alcohol and drug use increased. In May 2013, the Veteran’s brother stated that the Veteran reported he was in an accident towards the end of his service. The Veteran’s brother stated that he noticed that the Veteran was having back pain. He also noticed that when the Veteran got out of service he was drinking and using drugs. In May 2013, the Veteran’s sister stated that she noticed that the Veteran was having trouble with his back after he left service. The Board finds that the lay statements of the Veteran’s fellow servicemembers and relatives are competent and credible, and support a finding that the Veteran was injured in service in a motor vehicle accident, had low back pain in service, and continued to have low back pain after service, although there is no competent and credible evidence that arthritis of the lumbar spine manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. Post-service treatment records reflect that the Veteran had a history of alcohol abuse from November 1980 and a history of cocaine abuse from November 1989 and that the Veteran was taking medication for back pain from at least December 2001. January 2009 VA treatment records reflect that the Veteran sought psychiatric treatment for substance abuse and reported that he had used drugs and alcohol to treat his pain. The Veteran also reported that he had used alcohol since service, and reported that he would drink because he could not get pain medication. A June 2009 x-ray revealed mild degenerative changes of the lumbar spine. A November 2009 MRI revealed multilevel degenerative disc disease, most prominently noted at L5-S1 with diffuse disc bulge and focal foraminal disc protrusions bilaterally (left greater than right), resulting in severe left and moderate right foraminal stenosis. The Veteran was afforded a VA examination in February 2010, which reflected a diagnosis of lumbar degenerative disc disease and degenerative arthritis. X-rays of the Veteran’s low back reflected a diagnosis of low back disability. The Veteran reported that he injured his low back when he was rear ended in a motor vehicle accident in service. The Veteran reported that the back pain never completely resolved after this accident; and he was on a profile due to his back problem intermittently until he was discharged from service in 1986. The examiner opined that the Veteran’s current back disability was not caused by or a result of an in-service back injury. The examiner noted that that the type of injury described as having occurred in the 1984 accident would most likely have been a problem of a brief duration, and these generally resolve without residual problems or effects. However, the diagnoses were a result of normal degenerative processes and not the 1984 back injury. In addition, the examiner noted that the opinion was further supported by the presence of similar degenerative changes in the thoracic spine noted on the included chest x-ray report. The examiner noted that the thoracic spine region was not injured in the 1984 accident by the Veteran’s report, and he did not report having had any symptoms relating to this spine region; there are no abnormal physical findings associated with this area either, but the area nonetheless showed similar degenerative changes. Additionally, the examiner noted that there was no evidence to indicate that the 1984 accident permanently increased the severity of any back-related symptoms beyond the natural progression, based on the evidence. However, the examination was not based on a consideration of the competent and credible lay evidence from the Veteran and his family that he had low back pain in service, continued to have low back pain after service, and has had low back pain since service. An April 2010 private treatment provider opined that the Veteran’s disc degeneration as described in a November 2009 radiology report, which revealed moderate to severe disc degeneration in the lower lumbar spine with bilateral foraminal stenosis was consistent with a process that had likely been progressing for a significant amount of time, possibly well over fifteen years. The treatment provider opined that it was reasonable to conclude that the initial injury could have possibly been caused by a motor vehicle accident that occurred in 1984. The Veteran underwent a VA examination in April 2018, which reflected a diagnosis of lumbosacral strain from 1985, degenerative arthritis of the spine from 2009, and intervertebral disc syndrome from 2009. The Veteran reported that he was involved in a motor vehicle accident in 1984 during service; he was seen at the time of the accident and was diagnosed with back sprain. The Veteran reported that over time the pain was tolerable, after approximately three years after service, the Veteran continued to have worsening back pain. He sought treatment approximately fifteen years ago and had a history of sacroiliac (SI) joint injections. The Veteran reported that he continued to have low back pain. The April 2018 VA examiner provided two separate opinions regarding the etiology of the Veteran’s low back condition. With regards to the Veteran’s diagnosis of back strain, in April 2018, the VA examiner opined that the Veteran’s diagnosis of back strain was at least as likely as not (50 percent or greater probability) incurred in or caused by the motor vehicle accident in service. With regards to the Veteran’s diagnosis of degenerative disc disease, in April 2018, the VA examiner opined that the Veteran’s diagnosis of degenerative disc disease was less likely than not (less than 50 percent probability) incurred or caused by the low back pain after the motor vehicle accident in service. However, the examiner noted that it was plausible for the diagnosis of degenerative disc disease to be a progression of his diagnosed back strain. In addition, the examiner noted that in the treatment records was a history of right knee pain and right knee osteoarthritis, which could also lead to chronic back conditions and degeneration disc disease due to poor biomechanics. The examiner noted that with the fifteen-year gap in the medical records a nexus could not be established. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for a low back condition characterized as lumbosacral strain and degenerative disc disease of the lumbar spine have been met. As discussed, February 1984 and June 1984 service treatment records reflect a diagnosis of low back muscle strain. The Veteran has provided competent and credible lay evidence that he sustained a low back injury in service during a motor vehicle accident and that he continued to have low back pain since his injury in service. The Veteran has credibly stated that he used drugs and alcohol to treat his low back condition, and therefore did not seek treatment for his low back condition until he began treatment for drug and alcohol abuse. In regard to the Veteran’s diagnosis of lumbosacral strain, the Board finds that the April 2018 VA opinion establishes that the Veteran’s lumbosacral strain is related to service. The April 2018 VA opinion is competent, credible and probative, and coupled with the other medical evidence of record including the service records, VA treatment records, and lay evidence, supports a conclusion that service connection for lumbosacral strain is warranted. In regard to the Veteran’s diagnosis of degenerative disc disease, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s diagnosis of degenerative disc disease was related to service. The Board finds that the April 2010 private opinion and the April 2018 VA opinion support a finding that it is at least as likely as not that the Veteran’s degenerative disc disease was related to service. Although the April 2018 VA examiner opined that Veteran’s diagnosis of degenerative disc disease was less likely than not (less than 50 percent probability) incurred or caused by the low back pain after the motor vehicle accident in service. The examiner also noted that it was plausible for the diagnosis of degenerative disc disease to be a progression of his diagnosed back strain. Further, the February 2010 VA examiner’s opinion that the Veteran’s current back disability was not caused by or a result of an in-service back injury was not based on a consideration of the competent and credible lay evidence from the Veteran and his family that he had low back pain in service, he had low back pain after he left service, and he had low back pain since service. The April 2010 private opinion and the April 2018 VA opinion are competent, credible and probative, and coupled with the other medical evidence of record including the service records, VA treatment records, and lay evidence, supports a conclusion that it is at least as likely as not that the Veteran’s degenerative disc disease is related to service. Therefore, based on the evidence as outlined above, the Board finds that the evidence is in equipoise as to whether the Veteran’s degenerative disc disease was related to service. Thus, resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that evidence of record supports a finding that service connection for a low back condition characterized as lumbosacral strain and degenerative disc disease is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel