Citation Nr: 21071975 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-61 710 DATE: December 1, 2021 ORDER Entitlement to service connection for lumbar spine degenerative disc and joint disease is granted. Entitlement to service connection for neurogenic claudication of the right lower extremity is granted. Entitlement to service connection for neurogenic claudication of the left lower extremity is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for migraines is remanded. FINDINGS OF FACT 1. The Veteran's lumbar spine degenerative disc and joint disease is related to his in-service fall. 2. The Veteran's neurogenic claudication of the right lower extremity is proximately due to his service-connected lumbar spine disability. 3. The Veteran's neurogenic claudication of the left lower extremity is proximately due to his service-connected lumbar spine disability. 4. The Veteran has experienced ringing in the ears related to tinnitus since his separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine degenerative disc and joint disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for neurogenic claudication of the right lower extremity as secondary to service-connected lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for neurogenic claudication of the left lower extremity as secondary to service-connected lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1957 to June 1958 and August 1960 to March 1962. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge (VLJ) in September 2021. A transcript of the proceeding is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for lumbar spine degenerative arthritis The Veteran contends that his lumbar spine disability is related to an in-service injury after he fell off the wing of an aircraft and landed on his back and buttocks area aboard the U.S.S. Lexington. The Veteran testified at the September 2021 Board hearing that he has had flares of back and leg pain since the fall in service. The Board concludes that the Veteran has a current disability that is related to an in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records show the Veteran has a current diagnosis of severe multi-level degenerative joint and degenerative disc disease of the lumbar spine. See, e.g., October 2003 and November 2011 VA treatment records. Though service treatment records (STRs) do not document a fall in service, the Veteran's testimony is consistent with the circumstances of his service. Additionally, he has consistently reported receiving treatment in service, that he did not report his back condition upon separation from service. The Veteran is competent to describe what medical treatment he received in service, what diagnosis a doctor gave him, and what symptoms he experienced at the time. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's testimony that he fell and injured his back in service to be competent, credible, and entitled to great probative weight. Accordingly, the in-service fall is established. Thus, the question becomes whether the current disability is related to this fall. In support of his claim, the Veteran submitted a private medical opinion by Dr. R.S. dated October 2021. This physician opined that the Veteran's spinal stenosis of the lumbar region is at least as likely as not due to his in-service fall. This opinion was based on a review of the STRs, VA treatment records, and the Veteran's statements regarding intermittent back and leg/foot pain since service. There are no contrary opinions of record. Accordingly, the Board finds the Veteran's current multi-level degenerative joint and degenerative disc disease of the lumbar spine is related to his in-service fall. Service connection for multi-level degenerative joint and degenerative disc disease of the lumbar spine is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for neurogenic claudication of the right lower extremity 3. Entitlement to service connection for neurogenic claudication of the left lower extremity The Veteran contends that his lumbar spine condition causes pain in both of his feet. At the September 2021 Board hearing, the Veteran testified that, while he has a diagnosis of diabetic peripheral neuropathy, the radiating pain from his lumbar spine condition is a separate disability. Service connection may be granted, on a secondary basis, for disability that is proximately due to, the result of, or chronically aggravated by a service-connected condition. See 38 C.F.R. § 3.310(a), (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this alternative secondary basis, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). August 2017 VA treatment records show the Veteran has a current disability of neurogenic claudication in both lower extremities, and the October 2021 private medical opinion by Dr. R.S. opined that it is at least as likely as not proximately due to or the result of his service-connected lumbar spine disability. There are no contrary opinions of record. Thus, the Board finds the Veteran's current bilateral neurogenic claudication is proximately due to his service-connected lumbar spine degenerative joint and disc disease. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for neurogenic claudication of the right and left lower extremity is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for tinnitus The Veteran contends that he suffers from tinnitus related to noise exposure in service. As an initial matter, the Board notes that in a January 2015 rating decision the RO characterized the claim as a claim to reopen the February 2014 rating decision denying entitlement to service connection for tinnitus. However, the Board notes that the February 2014 rating decision denied his claim for failure to attend a VA examination, and in that same month the Veteran reported that he missed the examination due to illness. Thus, the Board finds that the original February 2014 rating decision is not final, and a discussion of whether the claim is reopened is unnecessary. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Certain chronic diseases, including organic disease of the nervous system such as 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, 3.30; see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (finding tinnitus to be considered an organic disease of the nervous system for the purposes of 38 C.F.R. § 3.309(a)). For chronic diseases shown in service, service connection may be established through demonstrating continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his/her ears, then a diagnosis of tinnitus is generally applied without further examination. Here, the Veteran reports ringing in his ears since service, and VA examiners have identified the presence of tinnitus. See November 2014 VA examination. Accordingly, the Board finds that the Veteran has a diagnosis of tinnitus. The Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis of tinnitus. The Veteran's DD Form 214 shows that he received the Sharpshooters Badge in the 30-caliber rifle and his military occupational specialty was aircraft jet engine mechanic. The Veteran testified in September 2021 that he was exposed to noise from jet engines on an almost constant basis when he was stationed on the U.S.S. Lexington, and during the rest of his military career from various sources to include gun fire. The Board notes that the Veteran is competent to report his in-service noise exposure. See 38 C.F.R. § 3.159(a)(2). Thus, acoustic trauma in service has been established by the record. See 38 U.S.C. § 1154(a). Therefore, the question is one of nexus. See Davidson, supra. During the September 2021 Board hearing, the Veteran reported that he could not remember when he first began having trouble with tinnitus. However, in March 2013 VA treatment records, and November 2012 and July 2016 correspondence, the Veteran reported the onset of ringing in his ears during service that has continued since service. The Board finds the Veteran's lay testimony to be of particular importance for this claim, as the determination of whether or not service connection is warranted for tinnitus turns almost entirely on his lay statements. In particular, the Board finds the Veteran competent to report ringing in his ears in and since active military service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board is aware that the November 2014 VA examiner opined against relation to service based on the lack of a significant threshold shift at separation from service and the lack of hearing related complaints in service treatment records (STRs). However, given the Veteran's competent and credible lay assertions that his tinnitus began in service and has continued to the present, the evidence is at least in relative equipoise on this matter. Additionally, in a September 2021 private medical opinion submitted by the Veteran, Dr. G.H. opined that his tinnitus was at least as likely as not related to noise exposure in service. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154(b), 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt is resolved in favor of the Veteran, and entitlement to service connection for tinnitus is granted. REASONS FOR REMAND Entitlement to service connection for migraines is remanded. The Board notes that the Veteran has not been afforded a VA examination for migraines. The record reflects a current diagnosis of ocular migraines, and the Veteran's statements that he first experienced headaches in service, which he related to excessive noise exposure, is suggestive of an association with service. Therefore, the Board finds that the low bar of McClendon has been met and that a VA opinion is warranted to determine the etiology of his migraines. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his ocular migraines. The examination should be scheduled at a location as close to the Veteran's home as possible given his inability to travel. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. After examining the Veteran and reviewing the record, the examiner is to answer the following questions: (a) Is it at least as likely as not that the Veteran's claimed headaches are related to his active service, to include his in-service fall or to his exposure to noise during his active service? In answering this question, the examiner is advised that the Board finds the Veteran's history of suffering an in-service fall aboard a naval ship and his exposure to noise during his active service to be credible. (b) Is it at least as likely as not that the Veteran's claimed headaches are secondary to his now service-connected tinnitus? That is, is any identified headache disability proximately due to, the result of, or aggravated by his service-connected tinnitus? A complete rationale must be provided for all requested opinions. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.