Citation Nr: 22017072 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-29 448 DATE: March 24, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a back condition is granted. FINDINGS OF FACT 1. The Veteran is not shown to have current hearing loss, for VA purposes. 2. The Veteran's tinnitus had onset many years after separation from active service and is not otherwise related to any incident of active service. 3. Resolving reasonable doubt in the Veteran's favor, his back condition is at least as likely as not related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5103 (a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 5103 (a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for entitlement to service connection for a back condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from August 1972, to August 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 Regional Office (RO) rating decision. The Veteran testified at an October 2021 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran is seeking service connection for bilateral hearing loss and tinnitus. In this case, the Veteran contends that he is suffering from hearing loss and tinnitus as the result of his military occupational specialty (MOS) as a linguist. The Board finds that service connection for bilateral hearing loss is not warranted because the Veteran is not shown to have bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. Specifically, medical evidence, including the Veteran's VA examination in August 2018, does not demonstrate that the Veteran has bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. This is because he was not shown to have auditory thresholds in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz of 40 dB or greater; or auditory thresholds for at least three of the above frequencies of 26 dB or greater; or speech recognition scores less than 94 percent. Therefore, service connection for bilateral hearing loss is not for application; the evidence fails to demonstrate that a current disability exists, as the Veteran is not shown to have compensable hearing loss. See 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Turning to the question of the Veteran's tinnitus, the Board does recognize a present diagnosis of tinnitus, as reported by the Veteran and confirmed in the 2018 audiology examination report. However, the Board does not find a nexus between service and the present tinnitus, nor does it find that the condition manifested during a statutory presumptive period. In his hearing before the undersigned, the Veteran, asserted that he first noticed his tinnitus within the last 15 to 20 years. Generally speaking, a veteran is competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation"). Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the Veteran is competent to report symptoms of tinnitus, a date of onset of tinnitus, and even a diagnosis of that disability. A review of the Veteran's service treatment records does not show any evidence of tinnitus during active service. There is no evidence of tinnitus in the medical record between his separation from service and his claim for the disability. In the 2018 audiology examination, the Veteran reported to the examiner that his tinnitus is began 15 years ago. As such, the Board does not find that there is evidence that the Veteran's tinnitus had onset during active service, or even within one year of separation from active service, and therefore presumptive service connection is not supported. As to whether there is a medical nexus between the current tinnitus and any in-service noise exposure, the August 2018 examiner considered the Veteran's medical and lay history and stated that the condition was less likely than not related to any incident of active service. In support of this, the examiner stated that the Veterans enlistment examination from 1972 indicated hearing within normal limits and his ETS examination from 1975 (exam report and actual test tracing form) indicated hearing remained within normal limits, and did not indicate a clinically significant increase in threshold over time in service compared to the enlistment exam. Further, the examiner stated that while the veteran's reports of military noise exposure and/or reports of subsequent difficulties are noted, there is a lack of objective evidence of damage to the auditory system over time in service as evidenced by permanent clinically significant increases in threshold, based on frequency specific audiological testing. The Board finds this opinion persuasive. It was given by a medical specialist in contemplation of the complete medical record and the application of known medical principles to the facts of this specific case. The Board has carefully reviewed the evidence, but finds no medical evidence or opinions to contradict the conclusions of the examiner. The Board does acknowledge the Veteran's own firmly held beliefs that his condition is related to active service, but finds this of limited probative value. As noted above, while lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to provide etiological conclusion regarding the cause of his tinnitus, especially in light of the VA audiologist's conclusions to the contrary and the fact that the evidence fails to demonstrate a diagnosis of that disability in service. In sum, the Board finds that the Veteran does not have a present diagnosis of bilateral hearing loss, and therefore that claim fails the primary criterion of service connection and must be denied. His present tinnitus did not have onset until many years after service, and is not otherwise related to any incident of active service. Therefore, that claim must also be denied. 3. Entitlement to service connection for a back condition The Veteran is seeking service connection for a back condition. Specifically, the Veteran contends that his current back condition is due to a fall he suffered during basic training when he fell off horizontal ladder. The Board concludes that the Veteran has a current back condition, which is related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Accordingly, service connection is warranted for these conditions. Service connection may be granted upon the showing of continuous symptoms in service, or alternatively, a medical nexus to service. In this case, the Veteran has submitted sufficient clinical and lay evidence to warrant service connection for his back condition. Specifically, the Veterans service treatment records from September 1972 reveal complaints of chronic lower back pain. The Veteran was treated with Tylenol and the treating physician recommended no PT for three days. The Veterans post service treatment records furnished by SSA, reveal advanced degenerative disc disease diagnosed in 1999. The Veterans treatment records from 2000 and 2001 show continued low back pain that has worsened and decreased motion of the lumbar spine. Treatment records from 2004 reveal the Veterans underwent a spinal fusion. An August 2011 treatment record showed multilevel degenerative joint disease and lumbar spondylosis. Additionally, the medical treatment records show that the Veteran underwent a laminectomy in 2014. The Veteran testified during his October 2021 Board hearing that tried to use NSAIDs in pain when sitting and working and slept on the floor instead of the bed because of pain. He testified that he sought treatment for his back after service and was treated with Ativan and naproxen. Further, the Veteran testified that he sought treatment off and on every three, four, five months. The Veteran submitted a buddy statement from his ex-wife where she stated that the Veteran had extreme back pain after basic training due to an injury when he fell off horizontal ladder. Additionally, she stated that the Veterans back pain continued to plague him throughout their marriage and progressively worsened. Further, she recalled multiple surgeries and debilitating pain. The Board notes the negative opinion provided by the August 2018 VA examiner. The examiner stated that it was less likely than not that the Veterans back condition was a result of his military service, including his fall during basic training. In support of this opinion, the examiner stated that the in-service back condition was acute only. Further, he stated that there was no evidence of chronicity of care and a nexus has not been established. However, the Board finds that the examiner did not consider the Veterans lay statements of continuous care nor did he discuss the history of the Veterans back treatment beginning in 1999. Further, the examiner did not discuss any other possible sources of the Veterans current low back condition. As a result, this opinion lacks probative value. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is in relative equipoise as to whether the Veterans back condition is related to his injury sustained during his military service. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and grants service connection for his back condition. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica