Citation Nr: 18157218 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 17-01 008 DATE: December 12, 2018 ORDER Entitlement to service connection for a low back disability, diagnosed as chronic degenerative joint disease of the lumbar spine (DJD), is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s low back disability, diagnosed as DJD, is etiologically related to service. 2. The Veteran’s bilateral hearing loss is etiologically related to service. 3. The Veteran’s tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a low back disability, diagnosed as DJD, have been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria to establish service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to September 1992. The Veteran appeals a May 2016 rating decision by the Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for a low back condition, bilateral hearing loss, and tinnitus. A Veteran is entitled to Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a low back disability. The crux of this case centers on whether the Veteran has a lower back disability. The Veteran submitted a diagnosis by Dr. P.Y. in February 2018. Dr. P.Y. diagnosed the Veteran with “chronic degenerative joint disease of the lumbar spine emphasis lumbosacral region complicated by chronic discopathy and probable central spinal canal stenosis.” In contrast, the Veteran was afforded a VA examination in November 2016. The VA examiner opined there “was no current evidence of a chronic back condition.” The Board finds Dr. P.Y.’s opinion much more persuasive since he details and factors in the Veteran’s military history and his examination of the Veteran is of greater depth. As such, the Veteran has a current lower back disability. The second and third Shedden elements are also met. The Veteran stated he constantly lifted up to 200-pound projectiles while in service. See December 2016 Form 9. Furthermore, the Veteran stated he fell off the back of two vehicles while in service. See February 2016 Veteran Lay Statement. The Veteran submitted a positive medical nexus opinion. See February 2018 Dr. P.Y. opinion. Dr. P.Y. detailed the Veteran’s heavy lifting of munitions and ongoing medication for his back while in service. Dr. P.Y. opined the Veteran “is bilaterally and simultaneously positive for left and right sciatic pain and paresthesiae indicating probable central canal spinal stenosis.” Furthermore, Dr. P.Y. stated the onset of the condition “which persists to the present” was during the Veteran’s “active duty military service.” Accordingly, the Board finds that the preponderance of the evidence is in favor of the claim and entitlement to service connection for a low back disability, diagnosed as DJD, is granted. 2. Entitlement to service connection for bilateral hearing loss. The first and second Shedden elements are met. The Veteran has bilateral hearing loss for VA purposes. See January 2016 VA examination report. Additionally, the Board finds the Veteran had loud noise exposure as part of his military occupational specialty as a cannon crewmember. See February 2018 DD-214. As such, the crux of this case centers on whether the Veteran’s bilateral hearing loss is attributable to service. The Veteran provided a positive medical nexus opinion. See February 2018 Dr. P.Y. opinion. Dr. P.Y. detailed the Veteran’s military acoustic trauma, stated the Veteran suffered from progressive bilateral hearing loss, and opined the Veterans bilateral hearing loss “is directly and causally related to his military service.” In contrast, the January 2016 VA examiner returned a negative nexus opinion. The VA examiner noted the Veteran’s separation audiological examination was not of record. Thus, the VA examiner opined the Veteran’s other service audiological examinations were within normal limits with no significant threshold change and the record had no complaints of hearing difficulty. The January 2016 VA examiner relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Additionally, the Board affords Dr. P.Y.’s opinion greater probative value since he details and factors in the Veteran’s military history. Accordingly, the Board finds that the preponderance of the evidence is in favor of the claim and entitlement to service connection for bilateral hearing loss, is granted. 3. Entitlement to service connection for tinnitus. The first and second Shedden elements are met. The Veteran has tinnitus. See January 2016 VA examination report. Additionally, the Board finds the Veteran had loud noise exposure as part of his military occupational specialty as a cannon crewmember. See February 2018 DD-214. As such, the crux of this case centers on whether the Veteran’s tinnitus was attributable to time spent in service. The Veteran provided a positive medical nexus opinion. See February 2018 Dr. P.Y. opinion. Dr. P.Y. detailed the Veteran’s military acoustic trauma, stated the Veteran suffered from bilateral tinnitus, and opined the Veterans tinnitus “is directly and causally related to his military service.” Additionally, the Veteran stated the ringing in his ears is due to his military tenure. See December 2016 Form 9. In contrast, the January 2016 VA examiner returned a negative nexus opinion. The VA examiner opined that because the Veteran bilateral hearing loss was not linked to service, tinnitus was not service connected. As the Board and evidence of record find, however, the Veteran’s hearing loss is attributable to loud noise exposure in service, the VA examiner’s opinion is rendered moot. Accordingly, the Board finds that the preponderance of the evidence is in favor of the claim and entitlement to service connection for tinnitus, is granted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Zheng, Associate Counsel