Citation Nr: 21022294 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 19-30 807 DATE: April 15, 2021 ORDER The claim for service connection for a back disability is granted. The claim for service connection for bilateral hearing loss is granted. The claim for service connection for tinnitus is granted. FINDINGS OF FACT 1. Degenerative spondylosis, claimed as a back disability, is the result of active service. 2. Bilateral hearing loss had its onset during active service. 3. Bilateral tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability, to include degenerative spondylosis, are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.385. 3. The criteria for service connection of bilateral tinnitus are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy on active service from December 1990 to January 1996. This matter comes before the Board of Veterans Appeals (Board) from a March 2018 rating decision of the United States Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2021, the Veteran testified before the undersigned Veterans Law Judge by videoconference. The appeal is being granted prior to association of the transcript with the file. However, in light of the favorable outcome, the Veteran is not prejudiced. The hearing transcript will be associated with the file at a later date. Under the relevant laws and regulations, 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. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). By statute and regulation, any increase in disability over the course of service is presumed to be due to service unless shown by clear and unmistakable evidence to be due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of 10 percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Hearing loss and tinnitus are listed conditions, as organic diseases of the nervous system. Arthritis is also listed. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). “[L]ay 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.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine on a case by case basis, whether the Veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Veteran testified and stated that he worked as a hull technician on board ship during active service. Concerning his back disability, the Veteran testified that while stationed on board the USS SHENANDOAH (AD-44), he fell down a ladder well, injuring his back. On a separate occasion, he was attacked by eight other individuals, and sustained blows to his back. He testified that he experienced the onset of back pain after these injuries. The pain did not completely resolve despite treatment and has continued from active service to the present. Concerning his hearing loss and tinnitus, the Veteran testified that he was subjected to loud noises as a part of his job as a hull technician, and that he was also exposed to acoustic trauma when his ship collided with a tugboat. He was in his compartment at the time, and he experienced ringing in his ears which went away but recurred. Tinnitus then recurred until about 12-15 years after active service, at which time it became permanent. Similarly, he experienced diminished hearing during active service, which appeared to recover to some degree when out of a noisy environment, but which recurred and has persisted continuously since discharge until the present. The Board finds the evidence supports his contentions. a) Back There is no dispute that the Veteran presently exhibits a back disability. Private medical records show the Veteran was diagnosed with degenerative spondylosis in the lumbar spine in 2014. VA treatment records show results of x rays in 2017 that also document degenerative changes in the lumbar spine. There is no dispute that the Veteran was treated on active service for a fall down a stair well and after being attacked by eight individuals. Service treatment records document both injuries. In January 1994, he was treated for a fall down a ladder. He reported twisting both legs, and was treated with Motrin, ace wraps, and x-rays and told to return to the clinic as needed. In August 1994, he was treated after being attacked by eight other men. He reported being hit in the back, ribs, head and left eye. He was treated with Tylenol, x rays and told to return to the clinic as needed. The remaining issue before the Board is whether there is a causal nexus connecting current lumbar spondylosis and lumbar spine degenerative changes with the in-service injuries. The RO denied service connection based on the absence of a diagnosis of a lumbar spine condition during active service and on the Veteran’s separation examination, no evidence of a back condition or diagnosis of a lumbar spine conduction on VA examination in 1996, and the absence of a diagnosis of arthritis within a year after discharge from active service. The RO did not accord the Veteran VA examination or obtain a medical opinion. Concerning the RO’s reasoning, the Board observes that the absence of a lumbar spine diagnosis immediately following the in-service injuries or even at discharge is not necessarily dispositive of the matter. Analysis of the service treatment records shows that the injury to the Veteran’s back was not ruled out in either event. Rather, it appears that medical personnel directed their concern to the Veteran’s right calf and left knee which evidenced swelling and contusion after the fall, and the forehead and left eye which were scratched, swollen, and discolored after the attack. Such attention to other perhaps more prominent injuries does not establish an absence of injury to the back. In contrast, service treatment records further document the Veteran reported bruises to his back after the attack, which speaks to his observation of the consequence of an injury to his back, which he is competent to do. With regard to his fall down a ladder well, given the Veteran’s report of twisting both legs going down, confined space, the areas in which a hull technician would have worked, and the general construction of ladder passageways on board ship, it is not improbable that the Veteran sustained injury to his back that may not have been immediately evident. Turning to the medical evidence of record, VA and private treatment records show the Veteran has consistently reported chronic lower back pain since his 20s, previously managed conservatively. In addition, private treatment records show he reported in 2014 that he experienced back pain since active service. This was prior to the date of his claim for service connection for a back claim. The medical evidence corroborates the Veteran’s testimony and lends credibility to his statements. His reported back injuries are further consistent with injuries recorded in his service treatment records, and with the duties he would have been assigned and risks thereof in his military occupational specialty. After review of the evidence, the Board finds the Veteran’s April 2021 testimony credibly supported by the service treatment records and corroborated by private and VA treatment records. Of note is the consistent documentation in VA and private health care providers of back pain beginning during active service and persisting to the present, and of a long history of back pain managed conservatively for over 20 years. The Veteran’s competent and credible reports of continuing pain starting during active service and continuing since then to the present are an indicator of chronicity. Therefore, the Board finds that the probative lay and medical evidence of record shows that each element required for service connection has been met as the Veteran has current residuals of in-service injuries to his lower back which have been present since then to the present. There are no medical opinions, statements, or other medical evidencing against a finding that the diagnosed degenerative spondylosis is not the result of active service. Accordingly, because the competent and credible evidence supports the Veteran’s claim, service connection for a back disability to include degenerative spondylosis as the result of in-service injuries to the back is warranted. b) Hearing Loss and Tinnitus The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. See 38 C.F.R. § 3.385. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). There is no dispute that the Veteran is diagnosed with bilateral hearing loss that meets the definition of hearing loss within VA regulations. 38 C.F.R. § 3.385. A February 2018 VA examination report shows hearing loss within the meaning of 38 C.F.R. § 3.385 in that the auditory thresholds at 500, 2000, 3000, and 4000 are greater than 26 bilaterally. In addition, the Board accepts his testimony and statements as to the presence of tinnitus. Moreover, he is competent to describe his in-service noise exposure due to his military occupation as a hull technician, and he is also competent to report the lay observable events and presence of disability, or symptoms of disability, such as a sense of diminished hearing and of tinnitus. There is no evidence against a finding that he was exposed to loud noises. The question before the Board is whether the Veteran’s bilateral hearing loss and tinnitus are due to his in-service acoustic trauma. A February 2018 VA examiner opined it was less likely than not that the Veteran’s hearing loss was the result of active service. The VA examiner’s rationale was that service treatment records showed normal hearing at entrance to and discharge from active service. In addition, the VA examiner pointed to the Veteran’s reported exposure to loud noises post service both occupationally and recreationally. Specifically, the Veteran reported working as a maintenance for five years and as a machinist for 10 years; and noise exposure including firing weapons, riding motorcycles, listening to loud music, and using power tools. Thus, the VA examiner concluded, his hearing loss was more likely the result of post-service noise exposure. The VA examiner further opined it was less likely than not that the Veteran’s tinnitus was the result of active service. The VA examiner argued as rationale that although the Veteran reported the onset of tinnitus during active service when his ship collided with a tug boat, the Veteran also reported it resolved and had not re-appeared again until 12-15 years ago (or approximately 2005, almost 10 years after his discharge from active duty). Notwithstanding, the Veteran testified and stated that he consistently used hearing protection after his discharge from active service whereas hearing protection was not always available to him during active service. In addition, he attested that he experienced intermittent tinnitus during active service after the tug collision, persisted throughout the remaining period of active duty and post-service until the tinnitus became continuous. Similarly, he testified that the diminished hearing he experienced during active service did not resolve but persisted to the present time. The February 2018 VA examiner did not discuss delayed onset of hearing loss in the Veteran’s case. Nor did the VA examiner discuss the Veteran’s use of hearing protection post-service. Finally, the VA examiner reported the Veteran’s hearing impairment had resolved prior to discharge, which is not consistent with the Veteran’s competent and credible statements or testimony before the Board. Because of these omissions, and mistakes, the 2018 VA examiner’s opinion cannot be probative in this case. Moreover, the Veteran’s competent and credible reports of continuing diminished hearing and tinnitus starting during active service and continuing since then to the present are an indicator of chronicity. Accordingly, the sole probative evidence regarding a nexus is the competent and credible lay reports of onset in service and continuity of symptoms since that time albeit for the tinnitus, intermittently until about 2005 when it became permanent. Therefore, and because the competent and credible lay the evidence supports the Veteran’s claim, service connection for bilateral hearing loss and tinnitus is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.