Citation Nr: 22018390 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-53 320 DATE: March 29, 2022 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's low back disabilities were caused by or onset during the Veteran's service, manifested to a compensable degree within a year of separation from service, or were noted in service with continuous symptoms since separation from service. 2. The preponderance of the evidence is against a finding that the Veteran's tinnitus was caused by or onset during the Veteran's service, manifested to a compensable degree within a year of separation from service, or was noted in service with continuous symptoms since separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from September 1967 to June 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's June 2015 Notice of Disagreement addressed these two and three other issues: service connection for hypertension, service connection for numbness and tingling of the right hand, and service connection for numbness and tingling of the left hand. The RO issued a Statement of the Case in August 2017 which addressed all five claims. The Veteran's October 2017 VA Form 9 Substantive Appeal limited his appeal to service connection for tinnitus and chronic back pain. Therefore, the issues of denial of service connection for hypertension, for numbness and tingling of the right hand, and for numbness and tingling of the left hand are not before the Board. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as tinnitus (as an organic disease of the nervous system) and arthritis, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran's complete service treatment records (STRs) are unavailable for review. In cases where a veteran's STRs are unavailable through no fault of a veteran, there is a heightened obligation on the part of VA to assist the claimant in the development of his case, explain findings and conclusions, and to carefully consider the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The Board has complied with this heightened obligation. 1. Entitlement to service connection for a low back disability The Veteran contends that his current back disability is the result of an in-service injury in 1969 or 1970 when he fell from a telephone pole during a training exercise. The evidence indicates that the Veteran was involved in a serious motor vehicle collision in December 2006 which resulted in fractures of several vertebrae. The Veteran's complete service treatment records are not in evidence. The record contains only his enlistment examination, which was normal for the spine, and his enlistment report of medical history, which denied recurrent back pain and arthritis. The Veteran had X-rays of the lumbar spine completed in December 2006, shortly after the post-service motor vehicle accident, which showed "degenerative changes of the mid lumbar spine. There is no compression fracture or subluxation identified. The patient's transverse process fractures and laminar fractures identified on the prior CT study are poorly delineated by plain radiography in this patient." An April 2007 letter from a Dr. C. described the December 2006 motor vehicle accident as resulting in "pelvic fractures, facial fractures, and clavicular fracture." After reviewing an August 2007 MRI, the Veteran's private physician Dr. P. diagnosed scattered degenerative disc disease in the lumbar spine and also evidence of an "old compression fracture at L5 with what appears to be a Schmorl's node." In March 2008, Dr. P. stated that the Veteran continued to have lower back pain which was exacerbated by standing for almost any length of time. The Veteran's August 2011 Statement in Support of Claim stated that he suffers from chronic lower back pain. The Veteran described attending Marine Corps War Communications School in 1969 and 1970 and stated that he fell to the ground when he was near the top of a 25-foot telephone pole during a training exercise. The Veteran stated that he landed on his feet and was treated for heel contusions and splinters. The Veteran reported that he was seriously injured in the December 2006 automobile collision (noted above), leading to a fracture of the L2 and L5 vertebrae, and that "after the collision I suffered continued back pain." The Veteran stated that his physician found a pre-existing L5 compression fracture and preexisting arthritis. Finally, he stated that he never suffered back pain prior to the December 2006 collision. An August 2011 letter from a VA doctor stated that the Veteran's lower back X-rays show (1) scoliosis with diffuse moderate DJD of the lumbar spine; (2) disc space narrowing at all levels, with the most severe at L2-L3. In February 2012, the Veteran wrote to VA and argued that the August 2007 letter showed a previous stress fracture of the back in addition to the two fractures from the 2006 motor vehicle accident. The Veteran also stated that his neurologist told him that there was arthritis prior to the December 2006 accident and that it had remained dormant until the 2006 accident. A May 2012 letter from the Veteran reiterated his earlier statements. An October 2012 letter from the Veteran's wife stated that during his training, the Veteran fell 20 feet and was treated for splinters, shin splints and heel contusions. She said that she did not know of any other incidents that could have resulted in a back injury until the 2006 vehicle collision. The Veteran was afforded a VA examination for back conditions in May 2013. The VA examiner completed an in-person examination of the Veteran and reviewed the VA claims file. The examiner diagnosed (1) status post motor vehicle accident with multiple trauma including fractures L5 and L2 (diagnosed 2006); (2) degenerative disc disease (diagnosed 2007); (3) degenerative joint disease (diagnosed 2007); and (4) lumbar radiculopathy of bilateral lower extremities (diagnosed 2013). The Veteran denied having back problems before entering service and said that during service he fell from a pole about 25 feet, landed on his feet, and was diagnosed with heel contusions and shin splints. The examiner stated that the Veteran "doesn't specifically recall if he had acute back pain at the time of this reported in-service fall. He doesn't recall being told of any back-related diagnosis at that time... He doesn't recall any other significant back injuries during his active duty." The Veteran stated that he had no back problems after leaving active duty (in June 1971) until his vehicle accident in December 2006. A December 2005 medical record described the Veteran as quite active and did not document any history of previous back injury or current back symptoms. The May 2013 examiner opined that it was less likely than not that the back injuries were incurred during or caused by the claimed in-service injury for several reasons. First, there was no documentation of an in-service injury. Secondly, the evidence before the 2006 motor vehicle collision indicates that the Veteran did not have a clinically symptomatic back condition at that time, describing him as active. Also, the Veteran stated that he did not have back problems until the 2006 motor vehicle collision. Fourth, the examiner stated that the 2006 collision is likely responsible for his L2 and L5 fractures and that there was not convincing documentation of a pre-existing lumbar injury (particularly the December 2006 orthopedic/neurosurgical consultation report which did not document any past medical history of pre-existing lumbar conditions). Fifth, subsequent lumbar imaging 2007-2011 showed residuals from 2006 collision along with DDD and DJD (which are very common in middle-aged patients). Therefore, the examiner concluded that it is less likely than not that the DDD, DJD, and residuals of injury are related to service. In May 2013, the Veteran's wife wrote to VA, stating that the Veteran's back pain makes travel difficult and has altered his sleep pattern. An August 2017 private doctor's note stated that imaging of the Veteran's spine shows no acute fracture, but there is mild retrolisthesis of L2 over L3 and L3 over L4 with lumbar levoscoliosis and disc desiccation throughout the lumbar levels. The doctor stated that the "findings are suggestive of wear and tear changes throughout the lumbar spine." In his October 2017 VA Form 9 Substantive Appeal, the Veteran stated that the vertebral fractures from the 2006 collision healed but he has continued to experience pain. The Veteran said that a surgeon told him that he had pre-existing arthritis in his spine at the time of the 2006 collision. The Veteran said that the only other injuries he has had other than the vehicle collision in 2006 were a gunshot wound in Vietnam, the aforementioned fall of 25 feet in service, and a punctured eardrum. Applying the criteria for direct service connection, the Veteran has three diagnosed spinal disabilities: status-post fractures of the L2 and L5 vertebrae; degenerative disc disease; and degenerative joint disease. See VA Examination, May 16, 2013. The Veteran's statement that he fell from a telephone pole during training is credible and consistent with the duties of a Field Radar Operator. See Certificate of Release or Discharge From Active Duty, August 5, 2014. Thus, the first two criteria for service connection have been met. Saunders, 1361. However, the competent medical evidence of the May 2013 medical opinion is against a finding that the Veteran's fall from the telephone pole led to his current status post L2 and L5 fractures or degenerative disc disease or degenerative joint disease. The May 2013 medical opinion is based on a thorough review of the Veteran's treatment records and includes a thorough explanation as to how those facts show it is unlikely that the Veteran's current disabilities were caused by his service. The medical opinion is consistent with the Veteran's report that he had no symptoms of back pain after his fall or at any time until his December 2006 vehicle collision. There is no medical evidence to support the Veteran's theory that the fractures or the arthritis were caused during service. The Veteran correctly points out that the August 2007 letter from Dr. P. described an "old" L5 fracture. However, Dr. P.'s letter does not indicate why he believed it was old or how old the fracture was, and certainly does not indicate that it was caused in 1969 or 1970. The May 2013 medical opinion discusses the origin of the L5 fracture and points out that the December 2006 orthopedic/neurosurgical consultation report which did not document any past medical history of pre-existing lumbar conditions). Therefore, the preponderance of the evidence is against a finding that the L5 fracture or the DDD or DJD were caused by the Veteran's active-duty service. As noted above, service connection for arthritis may be established by a showing that the arthritis onset during service or within one year of separation from service or showing that the condition was noted in service with symptoms continuously since separation from service. 38 C.F.R. § 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the evidence does not indicate that the current disabilities of DDD or DJD onset within one year of separation from service or were noted in service with symptoms continuously since service. There is no evidence of a back condition until more than 35 years after the Veteran's separation from service. The Veteran has not alleged that the current degenerative arthritis of the lumbar spine manifested to a compensable degree within one year of separation from service or that his symptoms have been continuous since service. Therefore, service connection cannot be established by the presumption for chronic diseases under 38 C.F.R. § 3.307 or by showing continuity of symptoms under Walker. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a low back disability is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 2. Entitlement to service connection for tinnitus The Veteran believes that his current tinnitus was caused by in-service exposure to hazardous noise. Turning to the evidence, the Veteran's service treatment records are unavailable other than an enlistment medical examination which found his hearing and ears to be normal and an enlistment report of medical history in which the Veteran denied ear trouble. The Veteran wrote to his wife during service in May 1968, reporting that he had a punctured eardrum which he believed might require surgery. A copy of the letter is in evidence. In August 2011, the Veteran submitted a Statement in Support of his claim. The Veteran said that he had a ruptured eardrum in 1968 and that he had ringing in his ears after firing on the firing range in 1968 but "in a short period of time the ringing went away." He described hazardous noise exposure during his service from firing of KML 106 recoilless rifle on his vehicle only feet away from him. He said that he was never issued hearing protection during his service in Vietnam, although he was issued hearing protection after returning from Vietnam. The Veteran said that he worked in law enforcement for seven years after service and then in an office environment for 32 years. In a September 2011 VA treatment record, the Veteran reported constant tinnitus. The Veteran underwent a VA examination for tinnitus and hearing loss in May 2013. The Veteran reported current tinnitus. He said that he noticed the ringing in his ears in 2006 after the aforementioned motor vehicle collision. The Veteran stated "this was the first time he was perfectly still and quiet to be able to notice ringing. He states that he believes the ringing was there before [but] he [was] just too busy to hear it." The examiner stated that she could not provide a medical opinion without resorting to speculation due to the absence of his service treatment records. In May 2013, the Veteran's wife wrote to VA and stated that his hearing loss makes it difficult to communicate with him. The May 2013 VA examiner prepared an addendum opinion in May 2014. She opined that the tinnitus was less likely than not caused by in-service noise exposure because the Veteran did not notice it until after the 2006 motor vehicle accident. The Veteran's October 2017 VA Form 9 Substantive Appeal noted that the letter that the Veteran wrote in 1968 indicated that he had a punctured eardrum and that his statements show that he had hazardous noise exposure during service. The Veteran stated that his tinnitus onset "sometime ago" and that he did not notice it because he was active and engaged until recently. Tinnitus is, by definition, "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Because tinnitus is "subjective," its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has specifically been found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Applying the criteria for direct service connection, the first element (a diagnosed disability) is present because tinnitus is capable of lay diagnosis. Id. The second element, an in-service injury or event, is also present. The Veteran served as a Field Radar Operator and he has stated that he was positioned very nearby a KML 106 recoilless rifle which was fired when the Veteran was not wearing hearing protection. The Veteran also stated that he suffered from tinnitus briefly during service due to exposure to hazardous noise at the rifle range. The Veteran's statements are credible and consistent with the duties of a Field Radar Operator and thus the preponderance of the evidence indicates that he was exposed to hazardous noise during his service. Therefore, the second requirement of direct service connection has been met. Saunders, 1361. However, the evidence is against a finding that the Veteran's in-service noise exposure caused his current tinnitus. The May 2014 VA addendum medical opinion concluded that the current tinnitus was less likely than not caused by in-service noise exposure because the Veteran stated that he did not notice any ringing in his ears until 2006, after the motor vehicle collision. The addendum medical opinion holds substantial probative value because it is consistent with the absence of a diagnosis (lay diagnosis or otherwise) of tinnitus until 2011. There is no medical opinion to support the claim. The evidence is therefore against a finding that the Veteran's current tinnitus was caused by in-service noise exposure. There is also no evidence that the Veteran's current tinnitus manifested during his service or within one year after separation from service. The Veteran's service treatment records are not available. However, the Veteran's private treatment records do not include a complaint of tinnitus until 2011. Although the Veteran stated that he had an episode of tinnitus during service, he said that 'in a short period of time the ringing went away." The Veteran has not contended that he has heard ringing in his ears during the 35-year period between separation from service 1971 and 2006. The record does not contain evidence of tinnitus until decades after the Veteran's separation from service. Therefore, the Veteran's tinnitus condition cannot be presumptively service connected or service connected by a showing of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013). The Veteran has speculated that the tinnitus may have been present during the period between 1971 and 2006 but surrounding noise may have made it impossible for him to hear the tinnitus until 2006. There is no evidence to support this theory as the Veteran has acknowledged that he did not hear ringing in his ears until after the motor vehicle collision in December 2006. (continued on next page) For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for tinnitus is warranted. The evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Ian M. Hitchcock Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.