Citation Nr: 20007097 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-00 459 DATE: January 28, 2020 ORDER Entitlement to service connection for osteoarthritis of the left hip is granted. Entitlement to service connection for degenerative joint and disc disease of the lumbar spine with radiculopathy is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for right ear hearing loss hearing loss is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his chronic left hip disability had its onset in service. 2. Resolving reasonable doubt in favor of the Veteran, his chronic lumbar spine disability had its onset in service. 3. Resolving reasonable doubt in favor of the Veteran, the Veteran’s tinnitus was incurred in active service. 4. The Veteran does not currently have a right ear hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for osteoarthritis of the left hip have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. The criteria for establishing service connection for degenerative joint and disc disease of the lumbar spine with radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304 3.309. 3. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for establishing service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1971 to January 1974. This matter comes to the Board of Veterans' Appeals (Board) from January 2016 and May 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned VLJ at a Board hearing; a transcript of the hearing has been associated with the Veteran's record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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 (1990). 1. Entitlement to service connection for osteoarthritis of the left hip The Veteran and his attorney contend that he is entitled to service connection for osteoarthritis of the left hip which had its onset in service. Specifically, the Veteran claimed that he suffered from an injury in September 1971 which has resulted in left hip and lumbar spine disabilities. The Board notes that a VA examination from August 2018 diagnosed the Veteran with osteoarthritis of the left hip. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records confirm an in-service injury in which the Veteran was caught under a bucket loader which resulted in multiple abrasions and contusions. The Board notes that the service treatment record does not specify the extent of the injuries suffered by the Veteran. The Veteran provided additional details in the November 2019 Board hearing, explaining the circumstances surrounding the in-service injury. Accordingly, the second element for establishing service connection has been met. As to the final element of a service connection claim, the nexus between the Veteran's left hip disability and the in-service injury, the evidence is positive. As previously noted, at the November 2019 Board hearing, the Veteran explained the circumstances surrounding the in-service injury. The Veteran believes that his left hip disability had its origin due to his in-service injury. The Veteran is considered competent to provide statements to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran was not medically qualified to prove a matter requiring medical expertise. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the Veteran's statements that he had pain in his back and left hip since his active service are both competent and credible, his statements alone are not sufficient to medically attribute his current disabilities to the injury he experienced in service. The Veteran was afforded a VA examination in August 2018. The VA examiner did not explicitly provide a nexus opinion in the evaluation, however the examiner described a history of the disability and noted the Veteran’s history that the in-service injury caused the onset of the Veteran’s symptoms. The Board finds that the competent evidence of record is at least in equipoise. Accordingly, under these circumstances, and granting the Veteran the benefit of the doubt in this matter, the Board finds that service connection for osteoarthritis of the left hip is warranted because arthritis is one of those disabilities that may be presumed service connected based on continuity of symptoms and the Veteran credibly testified to such continuity and his assertions have not been contradicted by the evidence of record. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine The Veteran and his attorney contend that he is entitled to service connection for his lumbar spine disabilities which had their onset in service. Specifically, the Veteran claimed that he suffered from an injury in September 1971 which has resulted in left hip and lumbar spine disabilities. The Board notes that a VA examination from August 2018 diagnosed the Veteran with degenerative disc disease of the thoracolumbar spine. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records confirm an in-service injury in which the Veteran was caught under a bucket loader which resulted in multiple abrasions and contusions. The Board notes that the service treatment record does not specify the extent of the injuries suffered by the Veteran. The Veteran provided additional details in the November 2019 Board hearing, explaining the circumstances surrounding the in-service injury. Accordingly, the second element for establishing service connection has been met. As to the final element of a service connection claim, the nexus between the Veteran's lumbar spine disability and the in-service injury, the evidence is positive. As previously noted, at the November 2019 Board hearing, the Veteran explained the circumstances surrounding the in-service injury. The Veteran believes that his lumbar spine disabilities had their origin due to his in-service injury. The Veteran is competent to provide statements to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran was not medically qualified to prove a matter requiring medical expertise. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the Veteran's statements that he had pain in his back and left hip since his active service are both competent and credible, his statements alone are not sufficient to medically attribute his current disabilities to the injury he experienced in service. The Veteran was afforded a VA examination in August 2018. The VA examiner did not explicitly provide a nexus opinion in the evaluation, however the examiner described a history of the disability and noted the Veteran’s history that the in-service injury caused the onset of the Veteran’s symptoms. The Board finds that the competent evidence of record is at least in equipoise. Accordingly, under these circumstances, and granting the Veteran the benefit of the doubt in this matter, the Board finds that service connection for degenerative joint and disc disease with radiculopathy is warranted because arthritis and diseases of the nervous system are disabilities that may be presumed service connected based on continuity of symptoms and the Veteran credibly testified to such continuity and his assertions have not been contradicted by the evidence of record. 3. Entitlement to service connection for tinnitus The Veteran and his attorney assert that he was exposed to acoustic trauma during his service, and he has experienced progressively worsening tinnitus since that time. See the December 2015 VA audiological examination report and the November 2019 Board hearing transcript. For the reasons set forth below, the Board concludes that service connection for this disability is warranted. The record includes a diagnosis of tinnitus based on the Veteran's subjective reports of experiencing ringing in his ears. See the December 2015 VA audiological report. As such, the first element has been demonstrated. Concerning the second element, evidence of an in-service event or injury, the Veteran has consistently reported that he was exposed to acoustic trauma during his service, specifically, his in service MOS as a crawler tractor operator and serving as a gunner. While the Veteran's service treatment records are devoid of any instance(s) of complaints of, or treatment for, tinnitus or any hearing-related injury or disease, the Board notes that the Veteran has reported that he first experienced tinnitus while in active service. According to the Veteran, he has continued to experience tinnitus since his separation from active service. November 2019 Board Hearing. The Board also emphasizes that the Veteran is competent to report when he first experienced tinnitus and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible. These facts and the Veteran's assertions are also congruent with his duties while serving in Vietnam as a crawler tractor operator and serving as a gunner on a battleship, exposing him to acoustic trauma. Accordingly, the second element has been demonstrated. Finally, regarding the critical nexus element, the Board notes that the only nexus opinion of record is unfavorable to the Veteran's appeal. Specifically, after a review of the record and audiological testing of the Veteran, the December 2015 VA examiner opined that the Veteran's tinnitus was less likely as not proximately due to or the result of his in-service noise exposure. In providing this opinion, the examiner noted that the Veteran's tinnitus has not received continuity of care. The examiner also noted that the Veteran described his tinnitus as a constant buzzing around November 2015. During the November 2019 Board hearing and in a lay statement from January 2017, the Veteran explained that his tinnitus began during his service and has worsened over time. The December 2015 VA examiner's unfavorable nexus opinion is not found to be fatal to the Veteran's appeal. Tinnitus, as an organic disease of the nervous system, is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 evidenced 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). The Board notes that the Veteran is competent to diagnose tinnitus, i.e., ringing of the ears, on the basis of his own lay assertions. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (holding that the Veteran's lay testimony is competent to establish the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that, unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). In summary, the Veteran has asserted that his tinnitus has been present and worsening since his exposure to acoustic trauma during his active duty. This is consistent with the Veteran's statements in January 2017, and at the November 2019 hearing. Further, as noted above, tinnitus is a disability the Veteran is considered competent to identify. Charles, 16 Vet. App. at 374-75. There is no reason to doubt the credibility of the Veteran's reports and he is considered competent to be able to report the continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is credible in his reporting of continuous symptoms since service. After a review of the evidence of record as a whole, and in light of the foregoing, the Board finds that the Veteran had noise exposure in service and currently has tinnitus. Additionally, the Board finds persuasive the competent opinion of the Veteran relating his current tinnitus to his in-service noise exposure. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for this disorder is also warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for right ear hearing loss The Veteran and his attorney assert that the Veteran has a right ear hearing loss disability that originates from his active duty service. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where the Veteran’s hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App. at 155. If the record shows (a) acoustic trauma due to significant noise exposure in active service and audiometric test results reflect an upward shift in tested thresholds while in such service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. As to the claim for service connection for right ear hearing loss, the first threshold question that must be addressed is whether the Veteran has the disability for which service connection is sought. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Turning to the medical evidence at hand, the Veteran was provided a VA audiological examination in December 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 20 30 35 LEFT 5 10 45 65 70 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. This examination does not show the existence of a right ear hearing loss disability for VA benefits purposes. In sum, the Board finds that service connection for right ear hearing loss is not warranted. After a review of the record, the Board has found no evidence that demonstrates that the Veteran suffers right ear hearing loss for VA compensation purposes. The Board acknowledges that the Veteran asserts that he does in fact have right ear hearing loss; however, the Veteran's statements are outweighed by the objective clinical testing that shows the Veteran does not have right ear hearing loss for VA purposes. Accordingly, based on the VA examination results and evidence of record, service connection for right ear hearing loss must be denied because there is no current hearing loss disability for VA benefits purposes. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and service connection for right ear hearing loss is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Although further delay is regrettable, the Board concludes that additional development is necessary in order for VA to fulfill its duty to assist the Veteran and give him every opportunity to substantiate his appeal under the applicable laws. Entitlement to service connection for PTSD was denied in a May 2017 rating decision, and the Veteran submitted a notice of disagreement in April 2018. Because the filing of a notice of disagreement initiates appellate review, the claim must be remanded for the preparation of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The purpose of remanding this issue is to give the AOJ an opportunity to cure this defect. Thereafter, the AOJ should return the claims file to the Board only if the Veteran perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 (substantive appeal), the Board is not required, and in fact, has no authority, to decide the claim). The matter is REMANDED for the following action: The AOJ must provide the Veteran and his representative a Statement of the Case addressing the issue of service connection for PTSD. The Statement of the Case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these issues following the issuance of the Statement of the Case unless he perfects his appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.