Citation Nr: 21024707 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 08-24 467 DATE: April 23, 2021 ORDER Entitlement to service connection for lower back disorder is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1.A chronic lower back disorder was not shown in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2.Resolving reasonable doubt in the Veteran’s favor, the evidence of record demonstrates that the Veteran's pulsatile tinnitus had its onset in service. CONCLUSIONS OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. § §§ 1110, 1112, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309 (2019). The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1975 to March 1976, with service in Korea, and had inactive duty for training (INACDUTRA) in the Army National Guard from March 1976 to August 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. The Veteran’s DD 214 reflects that the Veteran spelled his name as [REDACTED] at one time. The most recent documents reflect that the Veteran spells his name [REDACTED]. In September 2011, May 2017 and April 2020 the Board remanded the case for further evidentiary development. The Board notes that there has been substantial compliance with the Board’s prior remand such that further appellate action is proper. Service Connection Generally, to establish service connection a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C. § 101(21)(24), (West 2002); 38 C.F.R. § 3.6(a) (2010). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1131. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes degenerative arthritis. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. § 1137 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. § 1137 (2012); 38 C.F.R. § 3.307(a)(3). The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. 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 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). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). Entitlement to service connection for lower back disorder The Veteran contends that his lower back disability was incurred during service. Based on the evidence of record, the Board disagrees. At the outset, the Veteran has been diagnosed with degenerative arthritis of the lumbar spine during his October 2011 VA examination. Therefore, the first prong of service connection, a current disability, has been satisfied. The focus then turns to the second prong required for service connection, an inservice onset, incurrence, or event. A review of the Veteran’s service treatment records reflects a normal clinical examination upon induction and the Veteran’s denial of any abnormality on his report of medical history. His separation examination was normal aside from a mild foot issue and an inguinal mass. He denied recurrent back pain on his report of medical history. There are no treatment records in service that reference complaints or treatment for the Veteran’s back. In January 1981, five years after separation from the Army, the Veteran underwent an enlistment physical examination for the Army National Guard which was normal in all respects. The Veteran denied having or ever having had recurrent back pain or arthritis in his Army National Guard enlistment report of medical history. There are no National Guard service treatment records reflecting a back injury and there is no clinical examination of record associated with the Veteran’s separation from the Army National Guard. The Veteran’s DD-214 indicates that the Veteran was not present at the time of his separation in August 1985. Social Security disability (SSI) records reflect a 2002 lumbar spine x-ray which revealed some degenerative change in the lower thoracic and thoracolumbar junction region without significant disc space narrowing or other abnormality. In an application questionnaire the Veteran indicated that he had been employed as a quality control technician in a chemical production plant from March 1986 to July 2000 which entailed four 12 hour shifts per week with 9 hours of standing, two hours of walking and one hour of sitting each day. During the workday he carried 5-gallon chemical drum 30 feet, frequently lifted 25-pound items throughout the day and lifted as much as 100 pounds at times. In April 2011 the Veteran testified in his travel board hearing that he injured his back in service climbing a hill on a 15-mile march carrying equipment on his back. He has had back aches off and on after that point that are alleviated with aspirin. In an October 2011 VA examination for the spine, the examiner confirmed a diagnosis of minimal spondylosis of the thoracic spine. During the examination the Veteran indicated that he had lower back pain lasting for an hour “every once in a while.” He had full range of motion without pain on initial and repetitive use testing with no muscle atrophy, a normal sensory exam, a normal straight leg raising test without evidence of radiculopathy. The examiner opined that it was less likely than not that the Veteran’s condition was related to his time in service. As rationale she noted that the service treatment records did not reflect any back condition, the first suggestion of a back condition was documented in private treatment records in 2001, minimal degenerative arthritis was diagnosed at the time of the examination 35 years after his discharge from service and the etiology of spondylosis was more likely than not the Veteran’s age as spondylosis is visible on the routine spinal x-rays of 90% of patients beginning at age 60. In the January 2021 VA examination for back injury the examiner confirmed a diagnosis of lumbosacral strain with onset in 2003 which the Veteran reported a was related to a fall in service while carrying equipment up a hill. His back disability has progressed to back pain that radiates down his left leg to foot which was worsens when he sits for long periods. Flare-ups occur 3 times a month with moderate pain approximating a severe toothache which is relieved by stretching, lying flat and taking pain relievers. Active range of motion testing revealed full forward flexion, 10 degrees of extension, 15 degrees of lateral flexion and full lateral rotation for 190 degrees of total motion for both initial testing and after testing with three repetitions and estimated with repeated use over time. There was no evidence of pain with motion. For flare-ups the examiner indicated that the Veteran would lose 5 degrees of motion for each vector totalling 30 degrees less, or 160 degrees of total motion. Passive range of motion testing was not performed to avoid causing the Veteran severe pain or risking further injury. The Veteran had mild pain upon palpation of the mid to lower back. The Veteran had no evidence of muscle spasm, guarding, sensory loss, radiculopathy or ankylosis. Functional loss was characterized as difficulty walking long distances. This examiner concluded that there was insufficient evidence to associate the Veteran’s current condition with an incident that happened in 1975 to 1976 without medical evidence at the time or during the intervening years. The examiner considered the Veteran’s description of a back injury occurring in service reviewing service the treatment records and any evidence within a year after separation from service. Accordingly, she opined that the Veteran’s currently diagnosed back strain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness to include carrying equipment up hill on his back during service. While the Veteran provided a lay statement as to an inservice incident which meets the second prong for service connection, the third prong required for service connection--a medical connection between an inservice incident and the Veteran’s current disability has not been established. The Board finds both examiners’ opinions to be competent, credible, and highly probative of the issue to be determined. The examiners reviewed the Veteran's file, and provided an opinion based on medical principles. The 2021 examiner included consideration of the Veteran’s lay statements regarding an inservice injury. There is no medical evidence that the Veteran's lower back disability manifested to a compensable degree within a year of discharge from active duty service or due from INACDUTRA with the Army National Guard. The Veteran’s statement regarding his activities in the chemical production plant do not indicate that the Veteran had a back disability. Thus, the Veteran is not entitled to the presumption for chronic conditions. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus had its onset in or is otherwise related to active service. After consideration of the evidence, the Board agrees. The Board finds that the first element of service connection has been met as the Veteran described the symptoms of a beating in his ears to a treating physician in his VA treatment records. During his Board hearing in April 2011 the Veteran testified that he spent 8 years in the National Guard of Alabama training other members how to use machine guns and other weapons with exposure to loud noises but not loud weapons while on active duty with the Army. However, the Veteran testified that he has experienced tinnitus, a thumping in his ears that sounds like his heart beating, since basic training while on active duty in the Army. He testified that he has discussed this issue with his treating physician. He noted that the physician counseled him that his ear symptoms may be related to stress. The Board takes judicial notice of the term “pulsatile tinnitus” which denotes perceivable objective vibratory noise in the ears including in connection with pulse, blood-flow, or heartbeat. As to the second element of an in-service injury or incurrence of the disability, the Veteran reported that his symptoms began in basic training while climbing a steep hill. In the Veteran’s separation from active duty Report of Medical History, he endorsed having had ear, nose, or throat trouble. He contends that these same symptoms were later diagnosed after separation from service as pulsatile tinnitus. The Board recognizes that a lay person is competent to report observable symptomatology of an injury or illness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Here, the Board finds that the Veteran is competent and credible to report his symptoms of pulsatile tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (explaining that lay persons are competent to provide opinions on limited medical issues which are readily observable and identifiable). The Board also finds nothing in the record that would contradict the competency and credibility of the Veteran's assertions regarding the onset of his tinnitus symptoms. Accordingly, the Board finds that the Veteran's disability was incurred during active duty service which satisfies the second element of service connection. In October 2011 and in December 2020 the Veteran underwent VA audiologic examinations for tinnitus. The Veteran denied recurrent tinnitus in both VA examinations. The audiologist examiners noted review of evidence including the Veteran’s DD-214s, enlistment and separation examinations and the prior C & P examination and rating decisions. Neither examiner acknowledged nor reviewed the Veteran’s hearing testimony in which he discussed a thumping in his ear that the Veteran states has been continuous since its onset in service or his VA clinic visit in which he discussed the tinnitus symptoms with a provider. In the Board hearing the Veteran indicated that he had not heard his symptoms referred to as tinnitus. Service connection for the Veteran's pulsatile tinnitus, therefore, turns upon whether there is a nexus between the in-service incurred disability and the present disability. As the condition for which the Veteran seeks service connection is a chronic disability, this final element may be shown through continuity of symptomatology since the Veteran's separation from service. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds that the element of a nexus between the current disability and service is also met. As noted above, the Veteran has reported his symptoms to a treating physician and testified in his board hearing that the onset occurred during basic training. The Board has considered the negative nexus opinions of the examiners and recognizes that the Veteran denied having tinnitus as the examiners queried him regarding ringing in his ears. Accordingly, the Board affords these opinions limited probative value as the examiners failed to consider the Veteran's hearing testimony and a VA treatment note which contains a description of pulsatile tinnitus symptoms. As the evidence of record is in relative equipoise as to whether the Veteran's pulsatile tinnitus began in service and has continued ever since, the Board affords the Veteran the benefit of the doubt and grants the Veteran's claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, service connection for pulsatile tinnitus is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.