Citation Nr: 21061382 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-42 832 DATE: October 1, 2021 ORDER Entitlement to service connection for a lower back condition is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's back condition had its onset during his active service while injured in service from lifting heavy objects. 2. The Veteran's tinnitus had onset during active service with continuity to the present. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lower back condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the United States Army from February 1981 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) August 2016 and February 2017 rating decision. In his VA Form 9 (Appeal to the Board of Veterans' Appeals), the Veteran requested a hearing before a Veterans Law Judge. The Veteran subsequently withdrew that request. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis and tinnitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a lower back condition is granted. The Veteran contends his chronic back condition began as a result of an injury he sustained after lifting heavy objects in service. For the following reasons, the Board finds that service connection is warranted. First, the evidence shows a current disability. Specifically, the Veteran has a diagnosis for lower back pain, lumbar spondylosis with myelopathy, lumbar intervertebral disc degeneration, lumbar intervertebral disc disorders with myelopathy, and lumbar radiculopathyThus, the first element of service connection is satisfied. Second, with regard to the in-service element, the Veteran reported that he was treated for a lower back condition while in service after injuring his back after lifting heavy objects. The Veteran's service treatment records show a history of lower back complaints. Specifically, the Veteran noted while in service that his lower back pain was injured from lifting and the examiner confirmed that the Veteran's in-service duties consisted of constant lifting. The Veteran's contentions are supported by the Veteran's service treatment records. Therefore, the second element of service connection has also been satisfied. The remaining question is whether there is a medical nexus between the Veteran's currently diagnosed back condition and his in-service injury. In that regard, the Board finds the evidence is in equipoise. The Veteran was afforded a VA examination in August 2016. The examiner concluded that it was more likely than not that the Veteran's back strain was not related to service. The examiner reasoned that the Veteran's back strain that was incurred in service had resolved itself and that the Veteran developed degenerative joint disease which was completely unrelated many years later. The examiner further noted that back strains do not lead to later degenerative joint disease. In contrast, the Veteran submitted a private examiner opinion in September 2019. The examiner indicated that he reviewed the Veteran's service treatment records as well as his initial examination, and treatment notes. The examiner concluded that the Veteran's chronic back conditions are at least as likely as not related to his service time. The examiner reasoned that based on the description of the multiple injuries he sustained while lifting, moving, and carrying very heavy iron beams regularly and awkwardly repositioned them while on active duty and the reports of further strenuous activities continued while injured, those occurrences initiated and caused the Veteran's current back problems. The evidence regarding nexus is at least in equipoise, particularly as the July 2017 opinion does not specifically account for the Veteran's testimony regarding his in-service injury or considered his other back diagnoses including lower back pain, lumbar spondylosis with myelopathy, lumbar intervertebral disc degeneration, lumbar intervertebral disc disorders with myelopathy, and lumbar radiculopathy. Rather, the July 2017 examiner only provided an opinion for degenerative joint disease. Therefore, the only remaining probative opinion of record is the November 2019 private opinion. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of service connection is established. As all three elements of service connection are met, service connection for a lower back condition is warranted. 2. Entitlement to service connection for tinnitus The Veteran has a present diagnosis of tinnitus. The Veteran has asserted that he has experienced tinnitus since service, when exposed to loud noise. The Veteran's DD-214 shows his military occupational specialty as a combat engineer. It also shows that he earned expert M-16 rifle, sharpshooter and hand grenade badges. As such, acoustic trauma in service is conceded. As discussed above, service connection may be granted for disability resulting from disease or injury incurred in active military service. 38 C.F.R. §§ 3.303, 3.304. A veteran is competent to testify that he experienced an audible sound in his ears in service, and that he has experienced this sound in his ears since that time.The Veteran is also competent to testify to the continuity of his ringing in the ears since his discharge from service. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The Board recognizes a February 2017 examination where the examiner opined against a nexus between the present tinnitus and active service. However, that opinion was premised on the notion that the Veteran did not experience tinnitus in service, and the examiner did not provide a rationale for rejecting the Veteran's competent and credible reports of tinnitus from the time of service. As such, it is of limited probative value in assessing this claim. Because the Veteran is competent to provide that diagnosis and history of continuity, the Board is satisfied that the record supports a finding that the Veteran's tinnitus was incurred in active military service. As such, service connection for tinnitus is granted. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.