Citation Nr: 21041182 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-54 306 DATE: July 8, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for degenerative arthritis of the spine also claimed as disk problems is remanded. FINDING OF FACT The Veteran has experienced tinnitus since his separation from service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1976 to September 1988. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In a March 2015 rating decision, the AOJ, in pertinent part, denied service connection for degenerative arthritis of the spine also claimed as disk problems. Although the Veteran did not file a notice of disagreement with the March 2015 rating decision, he submitted new and material evidence in November 2015, specifically private treatment records noting complaints of back pain dating back to 2002, which is 13 years earlier than previously reported on the February 2015 VA examination report. Under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Thus, with respect to the service connection claim for degenerative arthritis of the spine, the claim remained pending. The AOJ denied service connection for tinnitus and continued the denial of service connection for degenerative arthritis of the spine in a May 2016 rating decision. In an October 2016 rating decision, the AOJ confirmed the denial of service connection for tinnitus. The Veteran testified at a virtual Board hearing in May 2021. A transcript is of record. 1. Entitlement to service connection for tinnitus Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. For chronic diseases such as organic diseases of the nervous system, which includes tinnitus, a showing of continuity of symptomatology may serve to satisfy the nexus element. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that he has tinnitus that first manifested during his military service, and continued and worsened after his service. The Board concludes that while the Veteran's tinnitus was not diagnosed during service, tinnitus is a disability that involves symptoms that are subjectively identifiable. The Veteran is competent to state that he has experienced tinnitus since service; and there is no reason shown in the record to doubt his credibility. The AOJ has conceded the Veteran's exposure to hazardous noise in the military. See, e.g., October 2016 rating decision. The service department records show that the Veteran was a cannon crewmember for four years and three months. He also earned, in pertinent part, the expert badge with M16 rifle bar and the sharpshooter badge with .45 caliber pistol bar. In addition, his service treatment records specifically confirm that he was routinely exposed to hazardous noise, as noted in a June 1988 audiogram report. Thus, exposure to acoustic trauma in service is conceded. Tinnitus has been variously defined. It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin." 59 Fed. Reg. 17,297 (April 12, 1994). The Veteran's service treatment records are negative for any findings of tinnitus. The Veteran submitted testimony during the Board hearing in May 2021 that his tinnitus first started in service and that he noticed an increase in the tinnitus 11 to 12 years prior. After a careful review of the evidence of record, the Board finds that the Veteran has a tinnitus disability related to his military service. In making this determination, the Board notes the Veteran's assertions during his Board hearing. Tinnitus is found to be capable of lay observation, and thus his statements constitute competent evidence. The United States Court of Appeals for Veterans Claims (Court) has held that, 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 (2007). In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Walker, supra. Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Walker, supra. However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, generally requires medical evidence. The Veteran's statements with respect to his tinnitus are considered competent. The Board must now consider the credibility of such evidence. The Veteran has submitted statements at his Board hearing that he first noticed tinnitus in service. He noted on a VA examination in September 2016 that the onset of tinnitus was in 2012. In spite of this inconsistency, the Board will accept the Veteran's statements regarding experiencing tinnitus since service as credible, as they are consistent with his exposure to acoustic trauma in service. While tinnitus apparently was not a significant problem for the Veteran until after service, nonetheless, the Veteran's lay statements with respect to his complaints of tinnitus are deemed credible and provide probative evidence of chronic symptomatology for many years after service. See Savage v. Gober, 10 Vet. App. 488 (1997). Regarding the medical evidence of record, the September 2016 VA examiner found that the Veteran's tinnitus was not related to service. The examiner noted that there was no record of complaint or treatment for tinnitus in service and no evidence of current damage to either ear. The examiner indicated that although excessive noise exposure on active duty is conceded, and the relationship between noise exposure, auditory damage, and tinnitus was well-documented, auditory damage and tinnitus were not conceded based on hazardous noise alone. There must be a nexus of auditory damage on active duty to relate the current report of tinnitus to noise on active duty and not one of the many other etiologies of tinnitus. Thus, the examiner found that the objective evidence was against a nexus of auditory damage in this case. The probative value of the September 2016 medical opinion is diminished by the fact that the examiner did not have the benefit of the Veteran's later testimony in May 2021 that he had first noticed tinnitus during his military service. The examiner also appeared to assign no weight to the Veteran's conceded exposure to acoustic trauma in service, noting instead, that there was no possible permanent damage to the auditory system from conceded noise exposure while on active duty. The basis for this was the examiner's conclusion of there being no permanent shift in hearing thresholds greater than measurement variability. The service treatment records include November 1986 hearing conservation data, which note a 20-degree decibel shift at 500 Hz in the right ear from November 1985 to November 1986. It is not clear that the examiner assigned any significant weight to this threshold shift, or the Veteran's conceded exposure to acoustic trauma. Also, the examiner would not have been able to review the Veteran's later testimony at the Board hearing that he first noticed tinnitus in service. In addition, while the examiner noted that there was a correlation between tinnitus and acoustic trauma, particularly with no intervening factor, in the Veteran's case, he has both acoustic trauma and tinnitus and he testified that he did not have any significant noise exposure after service. See May 2021 hearing testimony, pp. 5-6 noting that after service he worked making tables where it got a little bit noisy, being a truck driver, and working at Walmart. As the examiner did not consider the Veteran's complete history, the probative value of the September 2016 opinion is not high. There are no other medical opinions of record addressing the etiology of the tinnitus. In weighing the conceded exposure to acoustic trauma in service, the medical evidence suggesting a relationship between the Veteran's tinnitus and his service, and the statements from the Veteran regarding chronic symptomatology for many years after service, the Board finds that the evidence is relatively equally-balanced in terms of whether he has tinnitus related to his military service, and will resolve this reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Therefore, entitlement to service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for degenerative arthritis of the spine also claimed as disk problems is remanded. The Veteran seeks service connection for degenerative arthritis of the spine. The service treatment records show that he was involved in a motor vehicle accident in June 1988 and was treated for cervical spine strain. He reported extreme tenderness and spasm to the cervical and upper thoracic area secondary to the motor vehicle accident. At an undated Chapter 14 examination, he noted that he still had back problems due to the car accident in June 1988. After service private treatment records show complaints of back pain in 2002. He underwent surgery to the cervical spine in 2003. He later was diagnosed with degenerative arthritis of the lumbar spine in 2015. A VA medical examination and opinion was provided in February 2015 that the Veteran's current arthritis of the lumbar spine was not related to service because the service treatment records showed no specific treatment for a low back condition and his x-rays were consistent with normal aging progress. The examiner noted that had he had a significant problem to his low back while in the military one would expect that he would be unable to perform physical type work. The examiner also noted that there was no consistency for treatment of his low back. The examiner did not consider that the Veteran had medical findings of extreme tenderness and spasm to the thoracic spine as a result of the motor vehicle accident in service; and continued to complain of back pain in an undated Chapter 14 examination report after the motor vehicle accident in service. The examiner also did not consider that the Veteran had post-service complaints of back pain since service, as this evidence was not available at the time. In addition, the Veteran testified that his doctor told him that his low back and neck problems were related. For these reasons, a supplemental medical opinion is warranted with consideration of the Veteran's complete medical history. The Veteran also alluded to additional private treatment records from Drs. Higgins and Cohen from Salisbury. The Veteran testified that he was diagnosed with rheumatoid arthritis from Dr. Higgins in 2002 or 2003 and that his doctor told him that his back problems had been there for a while. He indicated that he would be submitting these records. The Veteran later submitted private treatment records from Drs. Ahigian (two doctors with same last name) from North State Medical Group, which included a finding in December 2015 of a chronic back problem. It is not clear if the transcript recorded the wrong phonetic sounding and misinterpreted, "Dr. Higgins" for Dr. Ahigian. Regardless, on remand, attempts should be made to ensure that VA has the Veteran's complete treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from May 2016 to present, including any records related to back surgery scheduled for July 2021, per the Veteran's testimony. 2. Ask the Veteran to complete a VA Form 21-4142 for Drs. Higgins, Cohen, and any additional records from Drs. Ahigian from North State Medical Group, including any records related to back surgery scheduled for July 2021, per the Veteran's testimony. Make two requests for the authorized records from these physicians unless it is clear after the first request that a second request would be futile. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's degenerative arthritis of the spine is at least as likely as not related to the Veteran's motor vehicle accident in service. The examiner should consider the Veteran's complaints of extreme tenderness and spasm in the thoracic spine in service related to the motor vehicle accident, his later complaint of low back pain related to the motor vehicle accident in service, post-service evidence of back pain since service, and the Veteran's current diagnosis of degenerative arthritis in the back. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.