Citation Nr: 21077445 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-52 943 DATE: December 29, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus is shown to be causally related to an in-service injury or disease. 2. The Veteran's low back disability manifested more than one year after separation and is not shown to be causally related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 August 1966 to September 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his Notice of Disagreement filed in July 2015, the Veteran had included the issues of entitlement to service connection for erectile dysfunction and increased ratings for hypertension, coronary artery disease, and two ratings for residuals of scar from coronary artery bypass. In his October 2017 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran excluded those claims from his appeal. 38 C.F.R. §§ 19.20, 19.22, 19.52. Therefore, the Board does not have jurisdiction over the claim for entitlement to service connection for erectile dysfunction or the four increased rating claims and will not address them herein. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (such as arthritis, and tinnitus and hearing loss as organic diseases of the nervous system) will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). 1. Entitlement to service connection for tinnitus. The Veteran was diagnosed with bilateral tinnitus in the May 2015 examination for hearing loss and tinnitus. Concerning an in-service injury or disease, the Veteran reports exposure to hazardous noise during service. The Veteran's DD-214 reflects that his occupational specialty was heavy vehicle driver, which is consistent with noise exposure in service. As a current disability and an in-service injury or disease have been shown, the dispositive issue in this appeal is whether there is a nexus between the current disability and the in-service noise exposure. In his May 2015 examination and again in his Notice of Disagreement, the Veteran reported that his tinnitus onset during service and has continued since then. The Veteran is competent to report the onset and persistence of tinnitus since service, and there is no evidence that his statements are not credible. Jandreau, 492 F.3d 1372; see Charles v. Principi, 16 Vet. App. 370 (2002). VA obtained opinions concerning the etiology of the Veteran's tinnitus in May 2015 and July 2015. The May 2015 VA examiner stated that an opinion could not be provided as to the etiology of tinnitus without resorting to speculation, and therefore is of no probative weight. The July 2015 VA medical opinion stated that it was less likely than not that the Veteran's tinnitus was caused by military service but failed to address the Veteran's statements that his tinnitus began in service and has persisted since. Dalton v. Peake, 21 Vet. App. 23 (2007). As such, the July 2015 opinion is inadequate and entitled to no probative weight. Treatment records are otherwise silent for any opinions concerning the etiology of the Veteran's tinnitus. Based on the foregoing, the only competent and credible evidence of record concerning a nexus are the Veteran's statements, which establish that he has continuously experienced tinnitus since its onset in service following the noise exposure. Therefore, service connection for a tinnitus is granted. 38 C.F.R. §§ 3.102, 3.303(b); see Walker, 708 F.3d 1331. 2. Entitlement to service connection for a low back disability. The Veteran was diagnosed with lumbar spine degenerative disc disease during a May 2015 VA examination. Service treatment records show that he reported pain in his right side lumbar area in September 1967. The Veteran reported a bump which appeared after prolonged driving, but the clinician found no bump. X-rays were negative and the Veteran was given bed rest for two days. The Veteran reported back pain again in January 1968 and was treated. He said that it had improved two days later. As a current disability and an in-service injury have been shown, the dispositive issue is whether there is a nexus between the current disability and the Veteran's treatment for back pain in-service. The Veteran has generally asserted that his current back pain is causally related to his in-service treatment. While lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the probable etiology of a disorder such as degenerative disc and joint disease of the lumbar spine falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has not demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting medical opinion. Therefore, his opinion in this matter has no probative value. To the extent the Veteran has asserted that he has continuously experienced low back pain since service, the Board finds that these statements conflict with other evidence of record. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Here, the Veteran specifically denied any current issues with recurrent back pain, arthritis, rheumatism, or other general joint issues in his July 1968 report of medical history, despite endorsing other medical issues on the same form. A 2006 private treatment record reflects that the Veteran endorsed an eight-year history of low back pain. As any assertions of continuous symptoms since service are directly contradicted by the Veteran's statements made at the time of this separation and for the purposes of treatment post-service, these assertions are not credible and entitled to no probative weight. Id. VA obtained an opinion concerning the etiology of the Veteran's low back disability in May 2015. The examiner opined that it was less likely than not that the Veteran's current back condition was secondary to events or conditions of military service because there was no medical evidence of a chronic or pathologic condition during military service or of a chain of chronicity from military service to a back condition after military service. The examiner stated that the Veteran's back problem during service was traumatic bursitis, which is not the same or an early indication of degenerative spinal disc or arthritic condition. She stated that there is no cause or effect relationship between the two conditions. The examiner also stated that the onset of the degenerative spine condition was too remote from military service to be considered related to service, particularly since the disc herniations were the result of worker's compensation related incidences of back injury according to private medical records. There is no evidence that the examiner was either not competent or credible, and further the opinion was supported by a well-reasoned rationale that discussed the nature of the current disability and the in-service injury. As such, the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran's separation examination in July 1968 found his spine to be normal and the Veteran denied any recurrent back pain, arthritis or rheumatism in his July 1968 report of medical history. The record includes private treatment records from an August 1998 surgery by Dr. M. Dr. M. noted that he had completed a surgery on the Veteran's back eight to nine years earlier and that the Veteran did well until he had a recent injury or reinjury of the back. In November 2006, the Veteran reported an eight year history of back pain. Based on the foregoing, the preponderance of the evidence is against a finding that the current degenerative disc and joint disease of the lumbar spine was caused by the in-service back pain. The competent medical evidence of the May 2015 examination stated that the current disability was less likely than not caused by service, and was supported by a reasoned rationale. Post-service treatment records also reflect that the Veteran's back disability did not have its onset until well after his separation from service. While the Veteran has asserted that his current disability is causally related to service, as noted above these assertions are not competent and therefore entitled to no weight. As such, service connection for a low back disability on a direct basis is not warranted. 38 C.F.R. §§ 3.102, 3.303. Degenerative disc disease is not specifically considered a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, to the extent that it may be considered to be a form of arthritis, there is no evidence that the disability manifested to a compensable degree within one year of the Veteran's separation. 38 C.F.R. § 3.307(a)(3). The Veteran's separation examination was normal, and the Veteran denied any issues with his back on the corresponding report of medical history. There is no post-service evidence of a low back disability until private treatment records noting a 1992 back surgery following a work injury. As such, presumptive service connection is not warranted in this case. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For the reasons set forth above, the preponderance of the evidence is against the claim seeking service connection for degenerative disc and joint disease of the lumbar spine on direct and presumptive theories of entitlement. Accordingly, service connection for a low back disability is denied. 38 C.F.R. §§ 3.303, 3.304. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. VA obtained opinions concerning the etiology of the Veteran's bilateral hearing loss in May 2015 and July 2015. The May 2015 VA examiner stated that an opinion could not be provided without resorting to speculation. As the opinion did not come to a clear conclusion, it is of no probative weight. The July 2015 VA medical opinion stated that it was less likely than not that the Veteran's bilateral hearing loss was caused by military service, but in support of that opinion simply stated that there was no evidence of complaints of hearing loss at separation. As the July 2015 opinion appears to have relied at least in part on the absence of complaints at separation, the opinion is inadequate. Dalton, 21 Vet. App. 23. As such, a remand is necessary for a new opinion concerning the etiology of the Veteran's hearing loss. The matter is REMANDED for the following action: 1. Obtain a medical opinion concerning the etiology of the Veteran's bilateral hearing loss. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the bilateral hearing loss disability is causally related to the Veteran's active service, including exposure to hazardous noise as a heavy vehicle driver and due to exposure to noise from artillery fire and/or automatic weapons fire? The examiner should consider the Veteran's 1968 separation audiogram results under both ASA and ISO-ANSI in determining whether hearing loss was present at separation or whether any threshold shifts occurred during service. A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.