Citation Nr: 21064129 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-31 909 DATE: October 19, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a lower back disorder is granted. Service connection for lumbosacral radiculitis, degeneration of the lumbar spine, and lumbago is granted. Service connection for tinnitus is denied. FINDINGS OF FACT 1. In a final decision issued in June 2015, the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for a lower back disorder. 2. Evidence associated with the record since the final June 2015 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a lower back disorder. 3. The Veteran's current lower back disorder, diagnosed as lumbosacral radiculitis, degeneration of the lumbar spine, and lumbago, is related to an in-service injury. 4. Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of service discharge. CONCLUSIONS OF LAW 1. The June 2015 rating decision that denied service connection for a lower back disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a lower back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for lumbosacral radiculitis, degeneration of the lumbar spine, and lumbago have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In addition to the evidence submitted by the Veteran, through his representative, subsequent to the issuance of the September 2019 statement of the case, the record includes additional VA treatment records and unrelated VA examination reports. While the Veteran has not waived AOJ consideration of such evidence, the Board finds that no prejudice results to him in proceeding with a decision at the present time as such contain findings duplicative to those previously considered by the AOJ or are irrelevant to the instant matters. 38 C.F.R. § 20.1305(c). New and Material Evidence 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a lower back disorder. By way of background, VA received the Veteran's original claim for service connection for a lower back disorder in March 2015. In a June 2015 rating decision, the AOJ considered the Veteran's service treatment records (STRs) and service personnel records (SPRs), and found that the evidence did not show a current disability. Thus, service connection for a lower back disorder was denied. Later that month, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. Therefore, the June 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 last prior 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board observes that the evidence associated with the record since the issuance of the June 2015 rating decision includes VA and private treatment records reflecting a current diagnosis of a lower back disorder and an opinion relating such disorder to the Veteran's military service. Consequently, as such claim was previously denied based on the lack of a current disability and the newly received evidence reflects such a diagnosed disorder, the Board finds that the evidence added to the record since the final June 2015 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a lower back disorder. Thus, as new and material evidence has been received, such claim is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis and organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 2. Entitlement to service connection for a lower back disorder. The Veteran contends that his current lower back disorder is the result of an injury incurred during service when jumping out of the way of a helicopter crash. In this regard, his STRs reflect that, upon his April 1977 enlistment examination, his spine was normal upon clinical evaluation. However, upon a May 1977 pre-training examination, scoliosis was noted on clinical evaluation. Thus, the Veteran was referred for an evaluation of his possible scoliosis. At such time, he reported that he was never aware of such disorder, and had no difficulty with playing sports, working, or everyday living. Physical examination of the back was normal with full range of motion; however, it was noted that his left lower extremity seemed to be one half inch shorter than the right, which would leave a curvature of the spine to the left. X-rays revealed straightening of the normal curve of the lumbosacral spine and a mild lateral curvature of the thoracic spine. However, the examiner found the examination to be within normal limits. In March 1978, it was noted that the Veteran injured his back when he landed hard on the main deck following a jump of about six feet from a helicopter to avoid a crash. He was diagnosed with a bruised back/contusion. In April 1978 and May 1978, he was seen again for muscle spasms. In October 1978, December 1978, and January 1979, the Veteran again complained of back pain, which was diagnosed as lumbosacral strain, and was hospitalized from February 28, 1979, to March 8, 1979, for low back pain. At such time, physical examination revealed mild paraspinous muscle tenderness, but was otherwise within normal limits. At the time of the Veteran's Apri 1980 separation examination, he reported recurrent back pain, which was noted to have been present for two years; however, his spine was normal upon clinical evaluation with full range of motion and no muscle loss, atrophy, or scoliosis. In May 2018, a VA examiner, a physician assistant, interviewed the Veteran, reviewed the record, and conducted a physical examination and opined that his claimed back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, she noted that his STRs reflected complaints of back pain with a diagnosis of muscle spasm. However, the examiner found that there was a lack of objective medical evidence of chronic condition. Thus, she found that the Veteran's incident of back pain/muscle spasms in service was acute, self-limiting, and without residuals, and there was no documented evidence that supports a chronic disability shown by STRs or treatment records following service. The examiner also indicated that the findings on X-ray were more likely due to the natural progression of age. Conversely, in December 2020, Dr. D.M., a private orthopedic surgeon, reviewed the record, interviewed the Veteran, and opined that his thoracolumbar spine disorder is the direct result of injuries he sustained while on active duty. In support of such opinion, he cited to relevant entries in the Veteran's STRs detailing his back injury when jumping from a helicopter and subsequent complaints of back pain, his post-service treatment records reflecting treatment for diagnoses of lumbosacral radiculitis, degeneration of the lumbar spine, and lumbago, and his lay statements detailing the onset and continuity of his back symptomatology. In this regard, Dr. D.M. noted the Veteran's recounting of his back injury in service, his report of a continuity of symptomatology thereafter, and his denial of any subsequent injury. He further opined that the Veteran's initial diagnosis in service was likely chronic mechanical low back syndrome, and cited to medical literature detailing the etiology and symptoms of such disorder, the former of which includes injury from an acute traumatic event or secondary to cumulative trauma. He further indicated that clinical research revealed that 70 percent of chronic mechanical lumbar disorders start out as a lumbar strain or sprain. As pertinent to the Veteran's case, Dr. D.M. noted that the Veteran's initial acute injury occurred when he jumped off a helicopter to the net and dropped to the deck to avoid a crash. He then recounted the Veteran's in-service treatment and found that, despite such efforts, his thoracolumbar spine remained constant and he was diagnosed with lumbar strain. Dr. D.M. further explained that, consistent with his mechanical low back syndrome, the Veteran continued to experience back pain that progressively worsened. He also provided a detailed refutation of the May 2018 VA examiner's opinion. As the May 2018 VA examiner did not address the Veteran's reports of a continuity of symptomatology of back pain following service, the Board finds that the probative value of her opinion is diminished. Conversely, the Board affords great probative weight to Dr. D.M.'s opinion as such considered all of the pertinent evidence of record, to include the Veteran's statements, relevant medical history, and pertinent medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, he offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Consequently, the Board finds that the probative evidence demonstrates that rhe Veteran's current lower back disorder, diagnosed as lumbosacral radiculitis, degeneration of the lumbar spine, and lumbago, is related to the aforementioned in-service injury. Thus, service connection for such disorder is warranted. 3. Entitlement to service connection for tinnitus. The Veteran contends that his currently diagnosed tinnitus is related to in-service noise exposure from helicopters and weapons without hearing protection. In this regard, the Board finds that the Veteran has a current diagnosis of tinnitus as such disorder can be identified through lay observations alone and he has offered competent and credible descriptions of experiencing tinnitus throughout the appeal period. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that lay evidence is competent to establish such disorders as tinnitus, which are characterized by unique and readily identifiable features that are capable of lay "observation".) Moreover, such diagnosis is confirmed by a November 2017 VA examination. Furthermore, although the Veteran's STRS are negative for complaints, treatment, or diagnoses referable to such disorder, his reported in-service noise exposure is consistent his military occupational specialty as boatswain's mate, which has a high probability of noise exposure. Thus, the remaining inquiry is whether the Veteran's current tinnitus is related to his military service, to include such acknowledged noise exposure therein. In this regard, after interviewing the Veteran, reviewing the record, and conducting an audiological evaluation, the November 2017 VA examiner opined it was less likely than not that his current tinnitus was incurred in or caused by the claimed in-service injury, event, or illness. In this regard, he noted that the Veteran's STRs were negative for any complaints, treatment, or diagnosis of bilateral hearing loss or tinnitus, and he reported the onset of tinnitus in 2012. He further explained that, while tinnitus may be secondary to bilateral hearing loss, the latter disorder was unrelated to the Veteran's military service. In this regard, the examiner noted that the Veteran had significant post-service noise exposure while employed for many years at a paper mill and such, as well as the natural course of hearing due to the aging process, was the more likely cause of his bilateral hearing loss. The Board affords great probative weight to the VA examiner's November 2017 opinion as such considered all of the pertinent evidence of record, to include the Veteran's statements and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, he offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. Notably, there is no medical opinion to the contrary. The Board also acknowledges the Veteran's assertions as to the etiology of his tinnitus. In this regard, while he is competent to report the nature of his in-service noise exposure and relevant symptomatology, he, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter. Specifically, the etiology of tinnitus involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship in that such requires knowledge of the impact noise exposure has on the inner workings of the ear. Thus, such may not be competently addressed by lay statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Veteran's opinion as to the etiology of his tinnitus is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that tinnitus manifested to a compensable degree within one year of the Veteran's separation from service. In this regard, the Veteran's STRs are negative for any relevant complaints, treatment, or diagnoses and he reported the onset of his tinnitus in 2012, over thirty years after his separation from service. Thus, presumptive service connection for tinnitus, to include based on a continuity of symptomatology, is not warranted. Based on the foregoing, the Board finds that the Veteran's tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of service discharge. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.