Citation Nr: 18159556 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-55 700 DATE: December 19, 2018 ORDER New and material evidence to reopen a claim of entitlement to service connection for degenerative disc disease of the lumbar spine with radiculopathy to bilateral lower extremities has been received; the appeal is granted to this extent only. Entitlement to service connection for degenerative disc disease of the lumbar spine with radiculopathy to bilateral lower extremities is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. In a decision issued in March 2010, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for degenerative disc disease of the lumbar spine with radiculopathy to bilateral lower extremities. 2. The Veteran filed a Notice of Disagreement (NOD), but did not perfect his appeal after the Statement of the Case (SOC) was issued. As no appeal or new evidence was submitted during the requisite period, the March 2010 decision became final. 3. Evidence received since the March 2010 decision is new and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for degenerative disc disease of the lumbar spine with radiculopathy to bilateral lower extremities. 4. The preponderance of the evidence is against finding that the Veteran’s degenerative disc disease of the lumbar spine with radiculopathy to bilateral lower extremities is due to a disease or injury in service, to include specific in-service event, injury, or disease. 5. The preponderance of the evidence is against finding that the Veteran’s tinnitus is due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The March 2010 rating decision denying entitlement to service connection for degenerative disc disease of the lumbar spine with radiculopathy to bilateral lower extremities is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence having been received, the criteria to reopen the claim of entitlement to service connection for degenerative disc disease of the lumbar spine with radiculopathy to bilateral lower extremities are met. 38 U.S.C. § 5108; 38 C.F.R. 3.156 (a). 3. The criteria for service connection for degenerative disc disease of the lumbar spine with radiculopathy to bilateral lower extremities are not met. 38 U.S.C. §§ 1110, 1111, 5107 (b); 38 C.F.R. §§ 3.102, 3.303 (a), 3.307, 3.309. 4. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303 (a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1969 until September 1971. The Veteran timely filed a substantive appeal as to tinnitus in November 2016 challenging the RO’s February 2014 rating decision denying service connection. The Veteran’s substantive appeal regarding the lower back disability will be addressed as a claim to reopen based on new and material evidence because the March 2010 RO’s rating decision denying service connection is final. Application to reopen a claim of service connection for a lower back disability The Veteran filed a formal claim for service connection for a lower back condition in September 2009. Service connection was denied for the Veteran’s lower back condition in March 2010. The Veteran filed a timely NOD regarding the denial of service connection for his lower back in April 2010, and a SOC was issued in January 2012. As neither the Veteran nor his representative submitted any document that could be construed as a timely substantive appeal pertaining to the claim of service connection for a lower back disability following the January 2012 SOC, the Agency of Original Jurisdiction (AOJ) closed the appeal. The AOJ did not certify the lower back issue to the Board of Veterans’ Appeals (Board) at that time and no further action was taken by VA to suggest that the issue was on appeal. Thus, the March 2010 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) (discussing the necessity of filing a substantive appeal which comports with governing regulations); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA. Material evidence is defined as 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 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). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). For determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this case, the Veteran’s claim of service connection for a lower back disability was initially denied in the March 2010 rating decision on the basis that the lower back disability existed prior to military service and there was no evidence to support aggravation of the pre-existing condition during military service. The evidence submitted since the March 2010 rating decision denying service connection for a lower back disability includes a January 2014 in-person VA examination of the Veteran’s lower back disability. The 2014 VA examination contains a negative etiological opinion regarding the Veteran’s lower back disability, but the Board finds that this evidence is sufficient to reopen the Veteran’s previously-denied claim. The new evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim, that is, a nexus opinion regarding in-service aggravation. This evidence is new and material, and reopening of the claim for a lower back disability is appropriate. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the Board will proceed with a discussion of service connection for Veteran’s lower back disability on the merits. Service connection for degenerative disc disease of the lumbar spine with radiculopathy to bilateral lower extremities Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions that are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, to rebut the presumption of soundness on entry into service, VA must show, by clear and unmistakable evidence, both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As an initial matter, the Board notes that despite the Veteran’s documented complaints of a lower back injury at his entrance examinations, no lower back diagnosis was noted upon his examination in May 1969, prior to his entry into service. The Veteran’s entrance medical examination is stamped “Registrant claims not verified by the Medical Officer and has been advised to substantiate claims to his Local Selective Service Board prior to induction.” As such, per the applicable statute and regulation, a lower back disability was not “noted” at entry. Thus, the Board must analyze the Veteran’s claim by way of the presumption of soundness under 38 U.S.C. § 1111. In this case, there is clear and unmistakable evidence demonstrating that the Veteran had a diagnosed low back disorder at the time he entered service. Notably, a disability related to a loss of lumbar lordosis was diagnosed in December 1969. The disability clearly and unmistakably existed prior to service because the x-ray evidencing loss of lumbar lordosis was taken in February 1969, prior to Veteran’s induction into service. Further, the Veteran’s statements in service and post service all indicated that he had a lower back disability prior to service. As such, the first prong needed to rebut the presumption of soundness has been met. 38 U.S.C. § 1110. Next, VA must show that the Veteran’s preexisting lower back disability clearly and unmistakably was not aggravated during his period of active duty. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran need not produce any evidence of aggravation to prevail under the no-aggravation prong to rebut the presumption of soundness. Rather, the burden is on the VA to establish by clear and unmistakable evidence that it was not aggravated or that any increase in severity was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The Board finds that the Veteran’s lower back disability clearly and unmistakably was not aggravated by service. First, the Veteran’s 1971 separation physical examination was negative for a chronic lower back condition. Second, the Veteran stated at separation that he was in “good” health and denied he had any back trouble of any kind. Third, the Veteran reported during his VA examinations that he worked from separation until 1973 on an automotive assembly line until he injured his back and underwent surgery, which suggests that his back was normal at separation but that there was a later injury. There are two medical opinions of record regarding whether aggravation of the Veteran’s lower back disability occurred during active duty. The February 2010 VA examiner could not provide an opinion without resorting to speculation whether the Veteran’s pre-existing lower back condition was aggravated in service. However, the January 2014 VA examiner opined that permanent aggravation of the Veteran’s low back disability in service was less likely than not. The 2014 VA examiner also stated that the Veteran’s visits for lower back pain during service were acute exacerbations of a pre-existing condition, which were resolved in service. The Board notes that the 2014 VA examiner did not use the evidentiary standard of clear and unmistakable when considering the Veteran’s back aggravation during service, but his negative etiology opinion when combined with the aforementioned evidence amounts to clear and unmistakable evidence the Veteran’s lower back condition was not aggravated by service. The Board notes that the Veteran’s statement that he experienced lower back symptomatology in service is competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay witnesses are competent to testify to features or symptoms of an injury or illness); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, his perception of the effect of his in-service duties on the aggravation of his lower back disability must be viewed in light of the medical and other evidence of record which suggests that his lower back disability clearly and unmistakably was not aggravated during active service. Based on the Veteran’s separation examination, the Veteran’s work history, and the 2014 VA opinion, the Board finds that the Veteran’s lay evidence is outweighed by the objective evidence of record which determined that the Veteran’s pre-existing lower back disability was not permanently or chronically worsened in service. For all the reasons stated above, the Board finds clear and unmistakable evidence that the Veteran’s pre-existing lower back disability was not aggravated by his active duty service, and the presumption of soundness has been rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). As the presumption of soundness has been rebutted, the Veteran is not entitled to service-connected benefits. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 55-57 (1990). Tinnitus The Veteran has tinnitus as stated in the 2014 VA examination report. The Veteran’s military separation document shows that he served as an armor crewman, therefore exposure to acoustic trauma is conceded. The Veteran underwent a VA examination in 2014 to obtain the etiology of his tinnitus. The Veteran described having a sound in his ear that sounds like a bowl is placed over his head and sometimes hears other noises. The Veteran reported these occurrences are two to three times monthly and last two minutes. The Veteran stated the onset of this condition was in “recent years.” The service treatment records do not document tinnitus symptoms. The VA examiner opined that the Veteran’s current tinnitus disability was less likely than not caused by or was a result of military noise exposure. The VA examiner reasoned that the Veteran’s report of delayed onset of tinnitus (10 or more years after service) is not consistent with tinnitus secondary to acoustic trauma. More recently, the Veteran stated in his November 2016 Form 9 substantive appeal, that he first experienced symptoms of tinnitus on the firing range when he was in service, and he is sure that his tinnitus began during active duty. The Veteran, as a layperson, is competent to report his experienced symptoms, such as ringing in the ears. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002). However, the Board does not find the Veteran’s recent statement on his Form 9 to be credible when he reports recurrent tinnitus symptoms since service. The Veteran has not been consistent in his account of the date and circumstances of the onset of tinnitus. At his 2014 VA examination, the Veteran told the VA examiner that his tinnitus began in “recent years.” This prior inconsistent statement tends to undermine the Veteran’s more recent assertion of recurrent symptoms of tinnitus since active duty. The VA examiner offered a negative nexus opinion supported by a rationale. The Veteran, while competent to report ringing in his ears, has offered inconsistent statements regarding the presence of tinnitus over the years. His reports of tinnitus during active duty and thereafter are afforded minimal probative value. Because the evidence shows that Veteran’s tinnitus did not manifest during service or within a year of leaving service, service connection may not be presumed for tinnitus as a chronic disease of the nervous system. The positive and negative evidence is not in approximate balance. Therefore, the benefit-of-the-doubt rule is not for application, and service-connection for tinnitus is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. St. Laurent