Citation Nr: 18158679 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 15-09 896 DATE: December 17, 2018 ORDER Service connection for a lower back disability is granted. Service connection for tinnitus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s current lower back disability of degenerative joint disease is at least as likely as not related to his active service. 2. The preponderance of the evidence is against finding that the Veteran has current tinnitus during the pendency of this appeal or a recent diagnosis prior to the filing of this claim for VA compensation benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back disability are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from January 1972 to September 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a claim of service connection for impaired hearing, demonstration of the first Shedden element—i.e., the existence of a current disability—is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. Service connection for certain diseases, such as an organic disease of the nervous system, including sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§1101, 1112; 38 C.F.R. §§ 3.309(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Tinnitus is considered an organic disease of the nervous system, and as such is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, Oct. 4, 1995; see Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease of the nervous system’”); 38 C.F.R. §§ 3.307, 3.309. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990). 1. Entitlement to service connection for a lower back disability. The Veteran asserts that his lower back disability is related to service. The Board concludes that the Veteran has current diagnosis in his lower back of degenerative joint disease and that the evidence is at least in equipoise that it is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA medical records, to include the 2014 VA examination report, show the Veteran has a current diagnosis of degenerative joint disease. As such, the first element of service connection is established via competent evidence. The Veteran asserts that his lower back disability is related to service through heavy lifting (lifting mortars and ammunition), as well as parachuting. The Veteran is competent to note what his activities in service were, and the Board finds him credible as his military personnel records contain documentation concerning mortar training. As such, the Board finds that the second element of service is established via competent and credible evidence that is consistent with the types, places, and circumstances of the Veteran’s service. However, the January 2014 VA examiner opined that it was less likely than not that the Veteran’s back disability was related to service. In support, the examiner noted that the Veteran’s service treatment records were absent for back pain and injuries. Therefore, the examiner concluded that it was less likely than not that the Veteran’s back disability was related to activity as a parachutist. The Board finds this examination report to have limited probative value as the examiner supported her conclusion on the lack of evidence in the Veteran’s service treatment records. Moreover, the examiner did not provide alternative causes of the Veteran’s disability. For these reasons, the VA examination has limited probative value. The Veteran has submitted a private medical opinion that states that his lower back disability is likely related to service. The private medical opinion explains the trauma associated with parachuting and how it affects the jumper’s spine. The opinion also notes the variety of ailments that the Veteran has had throughout the years and how the traumas are cumulative and lead to the current degenerative changes. The Board finds this opinion to have much probative weight. The opinion documents the Veteran’s relevant military history, to include parachuting, as well as the effects of such associated service. The opinion also provides a thorough rationale in support of the conclusion that the Veteran’s lower back disability is related to his military service including heavy lifting as well as parachuting. For these reasons, it is considered highly probative and is entitled to much probative weight. After review of the competent and probative evidence, the Board finds that the Veteran’s lower back disability is related to service. The Board acknowledges the negative VA medical opinion regarding the Veteran’s back disability, but the Veteran has also submitted a private medical opinion which the Board has found to have greater probative value because of its thorough rationale and consideration of relevant facts during and after his active service. Moreover, the VA examination relied on the absence of evidence to support the conclusion, and comparatively, has less probative value when compared to the private opinion. 38 C.F.R. § 3.102. As such, the Board finds that all three service connection elements are met and service connection is for the Veteran’s lower back disability is warranted. 2. Entitlement to service connection for tinnitus. The Veteran asserts service connection for tinnitus due to in-service exposure to loud noises. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of tinnitus, nor has he had one during the pendency of his appeal. The Board acknowledges that the Veteran experienced heavy noise exposure while in service due to mortar firing. The Board finds such exposure to be consistent with the types, places, and circumstances of his service. As such, the Board finds the second element of service connection, an in-service event/injury, to be met. However, the claims file is absent for any diagnosis of tinnitus or competent evidence of recurrent or persistent symptoms. At the January 2014 VA audiology examination, the Veteran denied tinnitus. Consistent with this, the report also reflects that the Veteran’s tinnitus had no functional impact on the ordinary conditions of daily life, to include his ability to work. Moreover, the Board has reviewed his relevant treatment records and he has consistently denied tinnitus in his medical records. For example, a September 2007 VA primary care note reflects a review of the Veteran’s ear, nose, and throat and he denied tinnitus. Additionally, after the 2014 VA examination, the Veteran was seen for a hearing evaluation in October 2014. The report of this visit reflects no tinnitus. The Board finds that these treatment report are probative and carry weight. In this regard, they are examples of when the Veteran sought treatment, to include specifically for audiological problems, and such was either denied or not found. While a finding that the Veteran had the disability “at some point during the processing of his claim,” can satisfy the service connection requirement for manifestation of current disability, the weight of the evidence does not demonstrate that the Veteran has reported experiencing or been diagnosed with any current tinnitus since he filed his current claim in July 2013. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). VA treatment reports reflect no complaints or findings of tinnitus at this time. Additionally, as noted above, the Veteran denied tinnitus in a 2007 VA treatment report. In the absence of proof of a current disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Board finds that the preponderance of the evidence is against finding service connection. As such, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts service connection for his current diagnosis of bilateral hearing loss. As noted above in the tinnitus discussion, the Board finds exposure to loud noises to be consistent with the types, places, and circumstances of the Veteran’s active service. He underwent a VA examination in January 2014. The report of this audiological examination reflects that he has a current diagnosis of bilateral hearing loss for VA purposes. However, the examiner found that it was less likely than not that the Veteran’s bilateral hearing loss was related to service. The examiner reported that the Veteran stated that his hearing loss began 20 years ago, and that literature on hearing loss resulting from exposure to noise does not support delayed onset hearing loss. The examiner acknowledged a positive threshold shift, but stated that there was no evidence to confirm the shift occurred in service as there was no separation examination for his hearing. The Board finds this examination to be inadequate as the examiner overly relied on the Veteran’s bilateral hearing loss not occurring immediately in service as well as no separation examination for his hearing. In this regard, the Board notes that the U.S. Court of Appeals for Veterans Claims (CAVC) has held that where there is no evidence of the Veteran’s claimed hearing disability until many years after separation from service, if the evidence “demonstrate[s] a medical relationship between the [V]eteran’s in-service exposure to loud noise and his current disability, it would follow that the [V]eteran incurred an injury in service....” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the foregoing reasons, the Board finds that a new VA examination for the Veteran’s bilateral hearing loss is warranted.   The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to include all recent VA records addressing the Veteran’s bilateral hearing loss. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After associating any treatment records with the claims file, schedule the Veteran for audiological examination by an appropriate audiologist to determine the nature and etiology of any hearing disability. The examiner is to provide an opinion whether it is at least as likely as not (50 percent or greater) that his current bilateral hearing loss for VA purposes is related to an in-service injury, event, or disease, including hazardous noise exposure. Additionally, the examiner is to address whether: it is at least as likely as not (50 percent or greater) that any hearing disability (1) began during active service, (2) manifested within one year after discharge (September 1981) from service, or (3) was noted during service with continuity of the same symptomatology since service. **Please note and account for the established exposure to loud noise in service. Additionally, the Veteran is competent to state that he has had hearing-related problems.** For any opinion above, a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel