Citation Nr: 22047294 Decision Date: 08/19/22 Archive Date: 08/19/22 DOCKET NO. 20-10 933 DATE: August 19, 2022 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a back disorder, diagnosed as low back pain with cauda equina syndrome, and degenerative disc disease, is granted. Entitlement to service connection for right lower extremity radiculopathy (claimed as right leg/ankle weakness and pain) is granted. Entitlement to service connection for left lower extremity radiculopathy (claimed as left leg weakness and pain) is granted. Entitlement to service connection for neurogenic bladder (claimed as bladder function loss and pain) is granted. REMANDED Entitlement to service connection for a bowel disability (claimed as bowel function loss and pain) is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his tinnitus was incurred during his active military service and has continued to the present. 2. Resolving all doubt in the Veteran's favor, his diagnosed low back pain with cauda equina syndrome and degenerative disc disease, is related to his active military service. 3. Resolving all doubt in the Veteran's favor, his right lower extremity radiculopathy (claimed as right leg/ankle weakness and pain) has been shown is related to his active military service or the result of his now service-connected low back pain with cauda equina syndrome. 4. Resolving all doubt in the Veteran's favor, his left lower extremity radiculopathy (claimed as left leg weakness and pain) has been shown is related to his active military service or the result of his now service-connected low back pain with cauda equina syndrome. 5. Resolving all doubt in the Veteran's favor, his neurogenic bladder (claimed as bladder function loss and pain) has been shown to be proximately due to or the result of his now service-connected low back pain with cauda equina syndrome. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a back disorder, diagnosed as low back pain with cauda equina syndrome, and degenerative disc disease, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for right lower extremity radiculopathy (claimed as right leg/ankle weakness and pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for left lower extremity radiculopathy (claimed as left leg weakness and pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for neurogenic bladder (claimed as bladder function loss and pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1980 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona In May 2022, the Veteran testified regarding these issues on appeal at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the records. SERVICE CONNECTION Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. Where a chronic disease under 3.309(a), such as arthritis and diseases of the nervous system, are "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the most persuasive evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. 38 U.S.C. § 1154(a). Lay evidence can be considered competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus had its onset while in service and has continued ever since. A VA audiological examination was performed in July 2016 to ascertain the nature of the Veteran's claimed tinnitus disability. During this examination, the VA examiner confirmed that the Veteran has a recurrent tinnitus diagnosis onset after his military service. Hence, the Veteran has a current disability of tinnitus. See, July 2017 Disability Benefits Questionnaire (DBQ) VA examination for Hearing Loss and Tinnitus. With regards to in-service occurrence, the Veteran has consistently asserted that he started experiencing tinnitus symptoms during his military service due to his regular exposure to loud aircraft, but that he did not report it, and that his symptoms continued to the present. Specifically, he testified during his May 2022 Board hearing that he worked on as an aircraft fuel systems mechanic while he was in the U.S. Air Force, performing his duties in the hangar, which was in close proximity to where the aircraft took off from the runways. He also testified that he worked on the "flight line," which was adjacent to the hanger, with the doors open, and so he could constantly hear the aircraft taking off. Further, that he was only provided with earmuffs, which he believed provided insufficient protection. As to post-service noise exposure, the Veteran further testified that he had several maintenance jobs right after service, and then worked "in a body shop" at Ford Motor Company for several years, starting in 1989. He stated that although his work entailed some "banging and hammering and filing and sanding," his noise exposure was different, and less significant, compared to the "high fit sounds of turbines" he was regularly and consistently exposed to while working on the "flight line" in service. The Veteran also testified that he was provided hearing protection (ear buds) at Ford, which he believed provided better protection. Based on the Veteran's reports of his in-service exposure, which the Board finds competent and credible, and given that it is consistent with his military occupational specialty (MOS) as aircraft fuel systems mechanic, the Board finds that the second element of service connection, in-service occurrence, has also been met in this case. As to the final element to establish service connection, a nexus currently linking diagnosed tinnitus to his active military service, the July 2017 VA examiner opined that the Veteran's tinnitus was less likely than not (less than 50/50 probability) incurred in service, citing that, "No documentation of tinnitus was noted in his STR medical," and that that the Veteran reported did not start experiencing symptoms until after service. The Board notes that this is inconsistent regarding what the Veteran has otherwise reported. In essence, the VA examiner is relying on the lack of documented evidence of in-service symptoms of tinnitus as a basis to find that the Veteran's currently diagnosed tinnitus could not have had its onset in service, despite the Veteran's report of significant noise exposure. A medical opinion based on the absence of documentation in the record is inadequate if it does not take into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). The Veteran is considered competent to testify as to observable symptoms such as ringing in his ears. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has consistently reported about his in-service significant noise exposure and the continuity of his symptoms post service until the present. The Board finds the Veteran's assertions credible and persuasive with respect to his observable symptoms of what in-service occurrences precipitated his tinnitus, and thus, has assigned his statements high probative value. Consequently, the Board finds the VA examiner's rationale for finding less than a 50 percent probability that the Veteran's noise exposure is related to his active military service inadequate, and as such, the Board has assigned this negative nexus opinion low probative value. Consequently, in weighing these facts, the Board finds that the most credible evidence of record establishes the in-service incurrence of an injury, in this case, the acoustic trauma. The Board further notes that given the nature of this disorder, the Veteran's credible statements of continuity of symptomatology may serve as a substitute for the evidence of an expert regarding its etiology. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the evidence is in approximate equipoise regarding whether the Veteran's current tinnitus was incurred in service. Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that service connection for his tinnitus is warranted. 38 U.S.C. § 1101, 1131, 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990) 2. Entitlement to service connection for low back pain with cauda equina syndrome, and degenerative disc disease The Veteran's asserts that his low back pain symptoms are a result of his documented in-service back injuries continued post service, and that notwithstanding the intervening work-related spine injury in 2011, this has resulted in his current back disabilities, for which hs is seeking service connection. The evidence of record reflects that the Veteran has current diagnoses of low back pain, cauda equina syndrome, and degenerative disc disease. See, April 2017 Disability Benefits Questionnaire (DBQ). See, July 2017 VA Back (Thoracolumbar Spine) Conditions DBQ. As such, the first element of the Veteran's claim has been met. As to the second element of in-service occurrence, the record also reflects that the Veteran reported several back injuries and complaints of symptoms of pain during his active-duty service. He had an initial in service back injury in January 1981, while playing basketball, when he jumped and landed on his left leg, and specifically complained of pain on his lower back, and subsequently reported that since then, he experienced "other episodes of pain." Also, on 11/1/82, the Veteran reported that he hurt his lower back while lifting a barrel, while on duty at the base; he was then diagnosed with lumbosacral strain and muscle spasm and treated with Motrin (400 mg). He had another back injury on 3/3/83, also while on duty, specifically from bending backwards while working under an aircraft. He was subsequently diagnosed with spinal muscle spasm and low back strain, treated with NSAID course of treatment, and placed on temporary work duty restrictions. An admission diagnosis of low back pain (his current diagnosis) was noted on 6/1/83, following the Veteran's complaint of severe pain on his back and hips; therapeutic measures of bed rest and Naprosyn (375 mg) was the course of treatment noted, and he was discharged on 6/5/83. Given these documented complaints, diagnosis and treatment for his low back, the Board finds that the element of in-service occurrence is clearly satisfied in this case. As such, the crux of this case is whether the Veteran's in service low back disability has resulted in his current disability, in light of the fact that the Veteran had two back surgeries, post-service, in 1993 and 1997, respectively, and suffered from a work-related back injury in 2011. To this end, a July 2017 VA examiner found no nexus between the Veteran's service and his current diagnosis of low back pain with cauda equina syndrome, stating that notwithstanding his documented in-service injuries, the Veteran sustained work-related injuries in 1993 and 2011, respectively. However, the examiner failed to explain a provide an adequate medical explanation with supporting evidence why these in-service back injuries and symptoms could not have resulted in the Veteran's current back disabilities, particularly with regard to his degenerative disc disease, given the chronic nature of this specific disability. The Board notes that a March 2016 x-ray indicting, "Narrowing of multilevels mid to lower thoracic spine. Degenerative changes," was referenced in the VA examiner's report, but the significance or lack thereof was not commented on by the examiner. Further, the Veteran was also diagnosed with "low back pain," while in service, which is one of his current back disabilities; the Veteran's February 2011 diagnosis of degenerative disc disease was also not reflected or addressed by the July 2017 VA examiner. Consequently, the Board finds the VA examiner's negative nexus opinion inadequate, and thus affords it a low probative value. On the other hand, the Veteran has submitted a compilation of nexus opinions from treating physicians, including a detailed statement and medical history with regards to his back disability, and bilateral radiculopathy and neurogenic bladder disabilities (which are discussed more fully below) relating his back disability to his military service. In short, the opinions bolster the premise that the Veteran's current low back disabilities, notwithstanding the intervening work-related spine injury in 2011, are as likely as not the result of his in-service low back injuries. Basically, what he has now is just a progression of what started in service, and while there was another injury in 2011, given the progressive nature of his degenerative disc disability, the etiological nature of the Veteran's back disability did not change. As such, notwithstanding that the Veteran had post service back injuries and surgeries, the fact that the Veteran had a diagnosis of degenerative disc disease which is progressive in nature, with no adequate opinion of record that rules out that such can be associated with the Veteran's in service injuries, which includes a low back pain diagnosis, renders the private nexus opinion more persuasive in this case. Furthermore, the Board finds that the Veteran's own statements regarding the onset of his low back disability and subsequent related symptoms are entitled to more probative value, especially given the Veteran's sworn testimony during his May 2022 Board testimony about same, which it also finds highly credible regarding onset, the nature of his service, and the continuity of his symptoms. In addition, as previously noted, the Veteran's degenerative disc disease is considered a chronic disease that together with the Veteran's credibly statements of continuity, may be presumptively linked to the Veteran's active service. Proven continuity of symptomatology when dealing with a chronic disease such as arthritis and diseases of the nervous system establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." See Walker v. Shinseki, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). As such, in resolving reasonable doubt in favor of the Veteran, the Board finds that the competent evidence of record is at least in appropriate equipoise as to whether the Veteran's back disorder, diagnosed as low back pain with cauda equina syndrome, and degenerative disc disease had its onset in service, and that his symptomology for this condition has continued ever since. Therefore, the Board finds that service connection is warranted in this case. 3. Entitlement to service connection for right lower extremity radiculopathy (claimed as right leg/ankle weakness and pain) 4. Entitlement to service connection for left lower extremity radiculopathy (claimed as left leg weakness and pain) 5. Entitlement to service connection for neurogenic bladder (claimed as bladder function loss and pain) With regard to these claims, the Veteran's asserts that they stem from his low back disability, resulting in radiculopathy symptoms; that his neurogenic bladder disability is specifically associated with his cauda equina syndrome, also due to low back disability. The Board notes that the record unambiguously reflects that the Veteran has current diagnoses of bilateral radiculopathy in the lower extremities and neurogenic bladder disabilities, respectively. Thus, the element of current diagnoses with regards to these claims is satisfied. As to the in-service element, the Veteran's service records reflect complaints of hip and leg pain complaints following his previously referenced back injuries. Specifically, after his January 1981 fall, the Veteran also complained of pain radiating from his left side from his hip downwards. After his November 1982 injury, besides his back, the Veteran also complained of experiencing pain on his right side, and pain on his lower hip was also noted. Further his PULHESX (Physical condition, Upper extremity, Lower extremity, Hearing-ears, vision-Eyes, neuropsychiatric-Stability, and physical work capacity) profile taken on June 1983, reflect a 3 for "L," his lower extremity, indicating that he was temporarily disqualified for duty based on limitations with regards to his lower extremities. The Board notes that lower extremities, under PULHESX, include feet, legs, pelvic girdle, lower back, and lower spine (lumbar and sacral) with regard to strength, motion range, and general efficiency. Consequently, the Board finds that in-service occurrence has been shown in this case, on a direct service connection basis, for the Veteran's bilateral radiculopathy lower extremity claims. As to nexus, as previously noted, the compilation of nexus opinions of record includes a positive nexus statement by his treating physician associating the Veteran's bilateral radiculopathy of the lower extremities, and his neurogenic bladder disorder with the Veteran's newly service-connected low back disability and military service. Specifically, a July 19, 2018, statement by Dr. T.H., acknowledged that the Veteran has "residual weakness, sensory loss in his lower extremities, groin area and dysfunction of bowels, bladder and sexuality," which in his opinion "[i]t is more likely than not that these disabilities are due to the Veteran's current cauda equina syndrome and his active duty back injuries." Further, another opinion by Dr. G.L.P. (July 13, 2018) states that the worsening nature of the Veteran's back pain in service, which progressed to leg pain, numbness, and weakness, resulted in the need for him to undergo back surgery, first in 1993, and a revision surgery in 1997. The Board notes that there is no VA etiological opinion with regard to these claims, and that the RO cited to a lack of documentation of evidence in service as the basis for its respective denials, which the Board finds to be inadequate basis for the denial of the Veteran's claims. As such, in weighing the evidence of record, the Board finds the most probative evidence is in approximate equipoise concerning whether these disabilities resulted from the Veteran's military service, including one or more of the Veteran's current and now service-connected low back disabilities. Consequently, the Veteran's claims for service connection for right lower extremity radiculopathy, left lower extremity radiculopathy and neurogenic bladder, are also respectively granted. REASONS FOR REMAND 1. Entitlement to service connection for a bowel disability, claimed as bowel function loss and pain, is remanded. Although the Veteran's private treatment records reflect a history of constipation associated with the Veteran's low back pain with cauda equina syndrome, and the discovery of colon polyps, there is no current diagnosis associated with his bowel disability claim or linking same to service or service-connected disability. Thus, a remand is warranted for a VA examination to evaluate the nature and etiology of the Veteran's claimed bowel disability before the Board can adjudicate the merits of this claim. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records pertaining to the remanded issue herein. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the current nature and etiology of his claimed bowel disability. The entire claims file, to include a complete copy of the Remand and of all evidence relevant to the examiner's review must be made available to the medical personnel designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions. The examiner must provide answers to the following: (a) State whether the Veteran has a current bowel disability. b) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any bowel disability had its clinical onset during the Veteran's active-duty service or is otherwise etiologically related to his active service. (b) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any bowel disability is caused by his service-connected disabilities, to include his diagnosed low back pain with cauda equina syndrome and degenerative disc disease. (c) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any bowel disability is aggravated by his service-connected disabilities, to include his diagnosed low back pain with cauda equina syndrome and degenerative disc disease. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 3. After all of the above development has been completed, the Agency of Jurisdiction (AOJ) should readjudicate this issue on appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.