Citation Nr: A21016503 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 190815-28106 DATE: October 7, 2021 ORDER New and relevant evidence has been received to readjudicate the claim for service connection for back disability. New and relevant evidence has been received to readjudicate the claim for service connection for tinnitus. New and relevant evidence has been received to readjudicate the claim for service connection for bilateral hearing loss. Service connection for a low back disability is granted. Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. New and relevant evidence has been received, which tends to prove or disprove a matter at issue in the claims for service connection for low back disability, tinnitus and bilateral hearing loss. 2. The evidence is at least in equipoise in the question of whether the Veteran's current degenerative arthritis and intervertebral disc syndrome (IVDS) of the lumbar spine are etiologically related to service. 3. The evidence is at least in equipoise regarding the question of whether the Veteran's current bilateral hearing loss and tinnitus are etiologically related to his in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria have been met to readjudicate the previously denied claim of service connection for a low back disability. 38 C.F.R. § 3.156(d). 2. The criteria for service connection for a low back disability, currently diagnosed degenerative arthritis and intervertebral disc syndrome of the lumbar spine, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria have been met to readjudicate the previously denied claim of service connection for tinnitus. 38 C.F.R. § 3.156(d). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria have been met to readjudicate the previously denied claim of service connection for bilateral hearing loss. 38 C.F.R. § 3.156(d). 6. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Marine Corps from March 1972 to March 1976. The Veteran's claims on appeal were originally denied in a March 2019 rating decision In May 2019, the Veteran submitted a VA Form 20-0995 Supplemental Claim Application for his claims on appeal. The RO processed the supplemental claim in a June 2019 rating decision, which found that new and relevant evidence had not been received to readjudicate the claims. The Agency of Original Jurisdiction (AOJ) also made the following favorable findings in its June 2019 decision: (i) The Veteran had been diagnosed with degenerative arthritis of the spine and IVDS; (ii) he had been diagnosed with tinnitus and had been exposed to a high probability of noise exposure while serving in his military occupational specialty (MOS) as a Fire Team Leader; and (iii) he had a diagnosis of bilateral sensorineural hearing loss for VA compensation purposes. In August 2019, the Veteran then filed a VA Form 10182 Notice of Disagreement and selected the Appeals Modernization Act (AMA) hearing lane. Accordingly, in adjudicating the issues on the merits, the Board is required to consider the evidence of record at the time of RO's June 2019 rating decision, evidence submitted by the Veteran at the hearing before the undersigned on April 12, 2021, as well as evidence submitted within 90 days following the hearing. 38 C.F.R. § 20.302 (b). In this case, the Veteran submitted considerable relevant evidence within 90 days of his April 2021 hearing, and it shall be considered in the Board's appellate review of the appeal. New and Relevant Evidence-All Claims The Veteran seeks readjudication of his claims for a low back disability, tinnitus, and bilateral hearing loss. Under the AMA, a claimant may continuously pursue a claim or issue by filing a supplemental claim following notice of a decision by the AOJ or the Board. 38 C.F.R. § 3.2500 (c). If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. 38 C.F.R. § 3.2501. New evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501 (a)(1). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501 (a)(2). If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. Id. The Board finds that new and relevant evidence has been submitted to warrant readjudication of the claims for service connection for a low back disability, tinnitus, and hearing loss. The Board will now adjudicate each claim on its merits in the analysis below. Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires a current disability, an in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Low Back Disability The Veteran seeks service connection for a low back disability. He maintains that he currently has a low back disability that is, in part, the result of a 1974 motor vehicle accident. Transcript at page (pg.) 12. Here, a March 2019 VA examination report shows a current diagnosis of degenerative arthritis and intervertebral disc syndrome of the lumbar spine. Therefore, the Board's analysis will focus on the second and third elements of service connection an in-service incurrence or aggravation of a disease or injury, and a nexus between the in-service incurrence and the Veteran's current lumbar spine disability. The Veteran's service treatment records (STRs) are devoid of any subjective complaints or clinical findings referable to the lumbar spine or a motor vehicle accident. A March 1976 service separation examination report reflects that the Veteran's spine was evaluated as normal. On an accompanying Report of Medical History, the Veteran denied having, or having had, recurrent back pain. Notwithstanding the lack of contemporaneous documentation of the Veteran having injured his back in a 1974 motor vehicle accident, he has submitted numerous statements from fellow service members and family members that document the in-service event. Numerous statements by family members have been submitted that corroborate the motor vehicle accident's occurrence, and that the Veteran has continually suffered from back pain since that time. After careful consideration, the Board finds the Veteran's account of having injured his back in a 1974 motor vehicle accident to be credible. Thus, the case turns on whether there is competent and credible evidence of a nexus of the currently diagnosed back disability to the 1974 motor vehicle accident. There are private and VA opinions that are for and against the claim. Evidence in support of the claim includes May 2019 and April 2021 opinions, authored by Dr. J. S., the Veteran's treating physician since 2008. After a review of the Veteran's medical history, which included his treatment for "Back issues" since 2004, and previously x-rays of the lumbar spine, Dr. J. S. reported that the Veteran has had minor car accidents over the years that may have partly contributed to some of his chronic low back condition. However, it is was Dr. J.S.'s opinion that the Veteran's lower back condition was at least as likely as not to have been related to his service, and that he did not have any other risk factors. The Board finds Dr. J. S.'s opinion to be of high probative value in evaluating the claim. While Dr. S. did not clearly indicate that it was the in-service motor vehicle accident that had contributed to the Veteran's low back condition, the Veteran has only given a history of a 1974 in-service accident, and has not provided any other intervening accidents. Thus, while not clearly articulated, it stands to reason that the long-history of treating the Veteran gave Dr. J. S. intimate knowledge of the Veteran's body mechanics and his spine disability and by that basis alone his opinion is found to be probative. Evidence against the claim includes a March 2019 VA examiner's opinion. After a physical evaluation of the Veteran's spine, the VA examiner opined that the medical records do not support that any currently diagnosed conditions of lower back pain with sciatica to include degenerative arthritis of the lumbosacral spine and IVDS are as likely than not (more than 50 percent probability) incurred in or caused by general military duties as a marine infantryman during service because the medical records do not document any such in-service circumstances. Here, the Board finds the VA examiner's opinion to be of reduced probative value because he did not address the Veteran's contention that his low back disability was the result of the in-service motor vehicle accident, and the Veteran's and his family member's statements regarding the onset of the 1974 accident and the Veteran's complaints of back pain since that time. Overall, after careful review of the claims file, the Board finds that the evidence is, at the very least, in equipoise on the question of whether the Veteran's current low back disability is etiologically related to his in-service injury. The Veteran is competent to report the circumstances surrounding his in-service low back injury, as well as the onset and nature of his low back disability symptoms since discharge from active service, and the Board finds his lay testimony to be credible in this regard. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). His account of the circumstances of his injuries has been consistent and is corroborated by his STRs. His statements regarding chronicity of symptoms since discharge from service are corroborated by statements from A.J. and L.H. There is also a private positive nexus opinion from a physician familiar with the Veteran and his claimed disability. The Board acknowledges the VA examiner's negative nexus opinion but affords it less probative weight than the private physician's opinion, who considered the Veteran's statements concerning chronicity of symptoms after service. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that the Veteran has also met the second and third requirements of service connection an in-service occurrence and a nexus between the occurrence and the currently diagnosed disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board finds that service connection for degenerative arthritis and intervertebral disc syndrome of the lumbar spine is warranted because the disability had its onset in service. 38 C.F.R. § 3.303. Bilateral Hearing Loss and Tinnitus, The Veteran seeks service contention for bilateral hearing loss and tinnitus. He contends that he has hearing loss and tinnitus as a result of having been exposed to acoustic trauma during service. He maintains that he did not have any hearing problems prior to service entrance, that he was exposed to acoustic trauma during service, and that he has experienced hearing loss and tinnitus since service discharge. The Veteran has provided written statement, oral testimony, and numerous statements from family members and friends in support of his contentions. For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran has been diagnosed as having tinnitus and bilateral hearing loss for VA compensation purposes. See February 2019 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire. Therefore, the Board's analysis will focus on the second and third elements of service connection an in-service incurrence or aggravation of a disease or injury, and a nexus between the in-service incurrence and the Veteran's current hearing loss for VA compensation purposes and tinnitus. The Veteran's STRs do not show any audiometric findings of hearing loss for VA compensation purposes, or complaints referable to hearing loss and/or tinnitus. A March 1976 service separation examination report reflects that the Veteran's ears were evaluated as "normal." However, an audiogram was not performed, and as such there is no official measurement of his hearing acuity at the time of separation. On an accompanying Report of Medical History, the Veteran denied having had any ear trouble or hearing loss. Despite the absence of any in-service evidence of hearing loss and/or tinnitus, the AOJ has determined that the Veteran's military occupational specialty as a Fire Team Leader was a position that placed him in an environment of loud noise. The Board is bound by this favorable finding. Thus, the claims for service connection for bilateral hearing loss and tinnitus hinge on whether there is a nexus between these disabilities and the Veteran's in-service acoustic trauma. In February 2019, a VA examiner acknowledged the Veteran's in-service exposure to military noise based on his MOS of infantry, but indicated that there were no documented in-service tinnitus and/or hearing loss complaints. The examiner further reported that the Veteran had denied the presence of hearing loss and tinnitus on a private audiological evaluation conducted in February 2007. Additionally, and with respect to the Veteran's hearing loss, the VA examiner further maintained that a second private audiological evaluation performed in early September 2018 indicated only a mild, high frequency hearing loss, whereas the Veteran displayed a moderate to moderately-severe sensorineural hearing loss at all tested frequencies on current (then) testing. Thus, according to the VA examiner, the significant decline in the Veteran's hearing over such a short period of time was indicative of a more recent onset for his hearing loss, as is the previous hearing loss denials. Therefore, the VA examiner concluded that it was less likely than not that the Veteran's hearing loss was the result of military noise exposure. See February 2019 Hearing Loss Disability Benefits Questionnaire (DBQ) at pg. 5. Concerning the Veteran's tinnitus, the VA examiner related that he only reported having sporadic tinnitus at that time. In addition, according to a medical study, normal tinnitus is experienced by most people lasting for less than five minutes less than once a week, and that the Veteran's current tinnitus fits that criterion. Thus, according to the VA examiner, given the Veteran's previous denial of tinnitus during his private audiological evaluations and the fact that his current description of his tinnitus fit the definition of normally-occurring, it was less likely than not that his tinnitus was the result of military noise exposure. Id at pg. 7. In reviewing the evidence of record, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. The Veteran has credibly and consistently stated that he was exposed to hazardous military noise in service. Upon separation from service, an accurate audiometric reading is not of record, as a audiometric evaluation was not performed. Therefore, his hearing acuity at the time of separation is not known. Filling that void, the Veteran, his friends and family members have credibly stated that his hearing loss and tinnitus had begun during service, and provided the necessary specificity in their comments as to give them great weight. There has been no other documented noise exposure either civilian or recreational which could account for the Veteran's hearing loss and tinnitus. As such, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's tinnitus and bilateral hearing loss is warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.