Citation Nr: 18160855 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-33 640 DATE: December 28, 2018 ORDER Entitlement to service connection for tinnitus is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability, to include degenerative joint disease of the lumbar spine, and thus, the claim is reopened. REMANDED Entitlement to service connection for a low back disability, to include degenerative joint disease of the lumbar spine is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus had its onset in service. 2. The Veteran’s claim for entitlement to service connection for residuals of a back injury was previously denied in a June 1981 rating decision. The Veteran did not file an appeal, and the rating decision became final. Since then, new and material evidence has been received that the Veteran asserts relates to unestablished facts that are necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. New and material evidence having been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. §§5108 (2017); 38 C.F.R. §§ 3.156 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1975 through October 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veteran’s Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Reopening degenerative joint disease of the lumbar spine The Veteran’s claim for service connection for residuals of a back injury was initially denied by the RO in a June 1981 rating decision. The June 1981 rating decision became final because the Veteran did not submit a Notice of Disagreement and pertinent or new evidence was not received within a year of his receipt of notice of the determination. See 38 C.F.R. § 3.156(b). To reopen his claim, the Veteran has now filed Medical Treatment Records, VA Examination Reports and Lay Statements that were not previously considered during his initial claim in 1981. The Veteran has also subsequently testified at a hearing before the Board. The Medical Treatment Records show that the Veteran was treated for a bulging disc in his lower back. See Medical Treatment Records, December 2008. VA examination reports show the Veteran’s current degenerative changes in his lower spine and a current diagnosis of a low back disability, to include degeneration of the lumbar or lumbosacral intervertebral. See VA Examination Report, October 2016, December 2011. The Veteran has also provided lay statements from various family members containing their recollection of the Veteran’s current and post-service back issues and other statements associating the Veteran’s injury with an in-service incurrence. See Statements, July 2017. Thus, the Board finds new and material evidence has been received to reopen the Veteran’s claim for a low back disability. Tinnitus The Veteran seeks service connection for tinnitus, which he contends began in service and has been recurrent since that time. To that end, service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. § 1110 (2012); 38 C.F.R § 3.303 (2017). Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 U.S.C. § 3.303 (2017); see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board finds that the Veteran has a current diagnosis, thus establishing the first element for service connection. The Veteran reported at his June 2014 VA examination that he was having difficulty tolerating the ringing in his ears and that he found the ringing bothersome. The VA examination report refers to the Veteran’s current diagnosis as tinnitus. See VA Examination Report, June 2014. The Veteran testified at his hearing that he began to notice a ringing in his ears on a constant basis just before leaving service in 1976 and that he currently experiences the same ringing noise. See Hearing Transcript, page 4, July 2017. The evidence shows that the Veteran experienced an in-service incurrence of his tinnitus, thus establishing the second element for service connection. The Veteran reported that he worked in a motor pool while in service at which time he was exposed to acoustic trauma while testing the engines on diesel fuel trucks. See Hearing Transcript, page 3, July 2017. The Veteran also reported the same in-service event at his June 2014 and December 2014 VA examinations when he stated that his exposure to loud noise occurred during service and not in civilian life. The Board finds that the Veteran is competent and credible to report the symptoms he recalls experiencing as a result of the in-service incurrence and to provide lay testimony concerning his recollection of when the ringing in his ears began. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also, Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran’s statements are consistent with the evidence of record. Thus, the Board finds that this evidence demonstrates that the Veteran experienced an in-service incurrence of his tinnitus and the second element for service connection is established. The Board assigns more probative weight to the competent and credible lay evidence linking the Veteran’s tinnitus to service, as opposed to the medical evidence provided. A June 2014 VA examiner opined that the Veteran’s tinnitus was least as likely as not related to a clinical hearing loss disability, but did not state whether tinnitus could be linked to the in-service noise exposure or acoustic trauma. A December 2016 Disability and Benefits Questionnaire stated that the Veteran’s tinnitus was less likely than not incurred in or caused by the claimed in-service injury and provided a rationale that pertained to a diagnosis of hearing loss, instead of tinnitus. However, the Veteran provided lay statements from two witnesses who recalled the Veteran reported difficulty with ringing in his ears and who were able to state that the Veteran reported exposure to acoustic trauma while in service. See Various Lay Statements, July 2017. The Veteran’s brother and the Veteran’s spouse provided statements noting that they recalled the Veteran complaining of ringing in his ears since leaving service in 1976. See Lay Statements, July 2017. The Board finds that these statements are credible as they have been provided by competent sources with personal knowledge of the Veteran’s symptomatology as it related to ringing in his ears, and are consistent with other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also, Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds such testimonies highly probative when weighed against the medical evidence and finds that because the evidence shows that the Veteran’s tinnitus had its onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). REASONS FOR REMAND In his initial 1981 claim of service connection for back disability, the Veteran reported having back problems during and since service. The RO denied the claim based on the absence of evidence of complaint and treatment for back problems. Since that time the Veteran provided sworn testimony and additional details of his in-service and post-service back problems. In addition, he has submitted corroborating lay statements in July 2017. As such, the Board finds that a VA examination is necessary to adjudicate the merits of the Veteran’s back disability claim. As such, this issue must be remanded. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine whether it is at least as likely as not that the Veteran’s current low back disability is related to or had its onset in service. The examiner should determine whether the Veteran’s current low back disability is aggravated by the in-service events as reflected by the Veteran’s lay report and those offered by others on his behalf. The examiner should identify all low back disabilities and conditions found to be present. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2017). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jones, Associate Counsel