Citation Nr: 21011747 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-25 723 DATE: March 2, 2021 ORDER 1. Service connection for a lumbar spine disability is granted. 2. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of arthritis of the lumbar spine. 2. Symptoms of lumbar spine arthritis had onset during service and have been continuous since service. 3. The Veteran currently has tinnitus. 4. The Veteran was exposed to loud noise (acoustic trauma) during service. 5. Symptoms of tinnitus had onset during service and have been continuous since service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to July 1971. The Veteran declined a Board of Veterans’ Appeals (Board) hearing on the May 2017 VA Form 9, Appeal to the Board. In June 2020, this case was remanded by the U.S. Court of Appeals for Veterans Claims and is again before the Board. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a). 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Where the evidence shows a “chronic disease” such as arthritis or tinnitus in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis or tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). As this decision is a full grant of the benefits sought on appeal, no further discussion the Veterans Claims Assistance Act of 2000 (VCAA) is required to explain how the duties to notify and assist have been met in this case. 1. Service Connection for a Lumbar Spine Disability The Veteran asserts that the degenerative arthritis of the lumbar spine had onset in service and that he has experienced lumbar spine symptoms continuously since service. See May 2016 Notice of Disagreement. Regarding a current disability, a November 2015 VA examination shows a current diagnosis of both degenerative arthritis of the spine and intervertebral disc syndrome. After a review of all the evidence, the Board finds that the lay and medical evidence of record is at least in equipoise on the question of whether symptoms of lumbar spine arthritis were “continuous” since service separation to meet the requirements of chronic disease presumptive service connection for arthritis under 38 C.F.R. § 3.303(b). Service treatment records show multiple complaints of and treatment for lower back pain during active service. For example, the Veteran complained of lower back pain over the course of the previous 30 days in December 1969 and also reported recurrent lower back pain in January 1970, and August 1971 at service separation. At the November 2015 VA examination, the Veteran reported that he experienced a lower back strain during service and has experienced constant low back pain since that time. A May 2016 Notice of Disagreement also shows the Veteran’s assertion that he had multiple falls during service while training to become a field wireman and experienced low back pain both during service and ever since service discharge. Resolving reasonable doubt in the Veteran’s favor, the Board finds that symptoms of lumbar spine arthritis began during service and have been continuous since separation from service. As symptoms of lumbar spine arthritis began during service and have been “continuous” since service, the “chronic” disease presumptive service connection criteria under 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b) are met for lumbar spine arthritis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 2. Service Connection for Tinnitus The Veteran asserts that tinnitus began during service and has continued since service separation. See May 2016 Notice of Disagreement. The evidence of record, including a November 2015 VA examination report, demonstrates that the Veteran currently has tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). On the question of onset of symptoms of tinnitus in service and since service, the evidence of record demonstrates in-service acoustic trauma, and the Veteran reported on the May 2016 Notice of Disagreement that tinnitus had onset during active service when he was exposed to loud noise while serving in an artillery battalion. The Board finds that the Veteran’s statements are competent, credible, and probative. The evidence of record is sufficient to show “continuous” tinnitus symptoms since service separation to meet the requirements of chronic disease presumptive service connection under 38 C.F.R. § 3.303(b). The November 2015 VA examiner wrote that the tinnitus was less likely than not related to service because tinnitus could be the result of a natural aging process, hereditary factors, post-service noise exposure, or a combination of all these factors. The Board gives this opinion no weight, as this opinion is speculative as to causation and only relates to the theory of direct service connection (38 C.F.R. § 3.303(d)), a theory rendered moot by the Board’s grant of presumptive service connection under 38 C.F.R. § 3.303(b). (Continued on the next page)   For these reasons, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran was exposed to loud noise (acoustic trauma) while in service and experienced “continuous” symptoms of tinnitus since service separation, which meets the criteria for presumptive service connection for the “chronic” disease of tinnitus under 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.