Citation Nr: 21040490 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-02 525 DATE: July 3, 2021 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for bilateral tinnitus is granted. FINDINGS OF FACT 1. The Veteran's lower back condition is etiologically related to service. 2. Currently diagnosed tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lower back condition are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection of 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 was a member of the United States Army Reserves. He served on active duty with the United States Army from May 1999 to October 1999 and March 2003 to August 2004. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) The issues have been framed as involving new and material evidence to reopen previously denied claims. However, as additional service records relevant to his claim have been added to the record after the prior, adverse October 2009 rating decision, reconsideration of the claim, not reopening, is the appropriate action. See 38 C.F.R. § 3.156(c). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for 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). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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 particular 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 at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2018). Moreover, the United States Court of Appeals for Veterans Claims (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Low Back Disability The Veteran contends that his low back disability is related to his active duty service. Specifically, he contends that it is related to a particular instance on deployment when pain in his lower back became so severe that he required assistance to get him to medical. A report of medical examination from March 1999 indicated the Veteran had no spine or other musculoskeletal issues when enlisting in the Army Reserves. The Veteran's reserve service medical records are silent for any diagnosis dealing with the lower back. Service treatment records from October 2003 document low back pain and pain while urinating. He was diagnosed with a lumbar sprain and given a medical slip stating he was prohibited from lifting anything over 20 pounds for several days. VA treatment records from June 2010 document continued lower back pain with occasional back spasms. Additional VA records from November 2011 contain the Veteran's continued complaints of more back pain. He stated he found out he has some degenerative disc issues. The Veteran submitted a May 2013 letter from his employer's medical and health coordinator stating the he had been seen in the first aid office off and on for three months for lower back pain. He gets relief from heat treatments and massage on his lower back, but severe pain returns within a week. The Veteran also submitted records from his private chiropractor showing continuous treatment from September 2010 to April 2013. The Veteran was given a VA back examination in January 2014. The examiner noted a diagnosis of degenerative arthritis of the spine. The Veteran described his lower back pain as daily deep aching that can sometimes be sharp. He also reported flare-ups that occur monthly that feel like his legs will give out and require him to take time off work. Evidence of painful motion was noted at 70 degrees of forward flexion. X-rays of the lumbosacral spine show mild disc space narrowing at multiple levels with the greatest narrowing at L5-S1. Mild degenerative changes of the facet joints of the lower lumbar spine were also noted. The examiner opined that the Veteran's lower back condition was less likely than not incurred in or caused by service. Her rationale for her opinion was that the Veteran had no chronic lumbar spine condition documentation in his service medical records and that he has a physically demanding occupational history. A buddy statement was submitted in February 2016 from a fellow service member who knew the Veteran before deployment and was deployed with him. He stated that he had to help take the Veteran to sick call at the combat support hospital because he was having pain from his belly button to his back. He also stated that it seems like the Veteran's back pain has gotten worse since they got home. He further stated that it seems like all he does is go to the doctor for the pain. Another buddy statement from February 2016 also states that he seems like he always has back pain and that he can't lift his share of anything. The Veteran attended virtual hearing before the undersigned in March 2021. He testified that he had no back issues prior to service. He first experienced pain in service while on deployment in the middle east. He stated that the pain has been constant since service and he has sought multiple methods of treatment including a chiropractor, community care, medication, and massage therapy. He described the pain as becoming worse over time. The Board notes the Veteran attended the virtual hearing while laying in bed due to his lower back pain. The Veteran has a current diagnosis of degenerative disc disease in his spine and chronic lower back pain. Service treatment records document an in-service occurrence of back pain diagnosed as back spasms at the time. The Veteran is competent to testify as to the symptoms he has. The Veteran testified at a virtual Board hearing that his back pain has been constant since service and is progressively worsening. He has document VA treatment records and private medical records that corroborate consistent claims of chronic lower back pain. The VA and private medical records also document physical and pharmaceutical treatment. There is a negative nexus opinion in the record pertaining to his back. However, the examiner's opinion based the chronicity of the back condition on record documentation and did not address the competent lay statements of the Veteran. Although there is no medical opinion of record that a nexus exists between the Veteran's in-service lower back injury and his current lower back condition, such evidence is not necessary considering the lay evidence of record concerning the onset and recurrence of his symptoms. King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Flynn v. Brown, 6 Vet. App. 500, 503 (1994). Consequently, all three elements necessary to establish service connection have been met. Bilateral Tinnitus The Veteran seeks service connection for tinnitus related to noise exposure in service. Tinnitus is a condition that is observable and reportable by a lay person, regardless of any specialized knowledge or training. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A medical diagnosis is not required, as the Veteran is able to describe the condition and diagnose himself. The Veteran's competent and credible lay statements about ringing in his ears establish a current diagnosis of tinnitus. As to the second element for service connection, service treatment records are absent for any complaint of or treatment for tinnitus during active service. However, the Veteran contends he had noise exposure while performing his duties as a petroleum supply specialist. At the March 2021 video hearing, he testified that he mainly provided escort support for convoys and assist transportation of 82nd Airborne troops. He manned .50 caliber machine guns as well as drove trucks as part of the escort. When driving, he was positioned right behind and below the machine gun as it was being fired. The Board finds that the Veteran was exposed to acoustic trauma while in service. The second element of service connection is met. Regarding a nexus between tinnitus and the in-service acoustic trauma, the Board notes that the relevant evidence of record includes an October 2014 VA examination. The Veteran indicated that the ringing in his ears drives him nuts and gives him problems when trying to get to sleep. The examiner opined that no medical opinion could be provided regarding the etiology of the Veteran's tinnitus without resorting to speculation. She stated the reason for speculation was the absence of service treatment records. The examiner failed to address the Veterans competent and credible lay statements regarding the ringing noise in his ears. VA treatment records from 2010 document the Veteran's complaint of ringing in his ears. He attended a hearing before a decision review officer in August 2015 and described having high-pitched ringing in his ears. At the March 2021 Board hearing, the Veteran explained that the ringing in his ears started during active duty and has existed since. He testified that the severe ringing is intermittent but there is always a white noise sound that is constant. Although there is no medical opinion of record that a nexus exists between the Veteran's in-service exposure to acoustic trauma and his tinnitus, such evidence is not necessary considering the lay evidence of record concerning the onset and recurrence of his symptoms. King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Flynn v. Brown, 6 Vet. App. 500, 503 (1994). Consequently, all three elements necessary to establish service connection have been met. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nolan, Shane D. 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.