10-31 148
10-31 148
Board of Vet. App.Apr 20, 2018Background
- Veteran served on active duty Sep 1965–Sep 1968; initial VA rating decision denied service connection for a herniated disc in Dec 1978 and was not appealed.
- Service treatment records document a February 1967 lumbar injury/strain after lifting equipment; Veteran reports chronic intermittent back pain since service.
- Post-service records show a ruptured/herniated disc with surgery in May 1978 (L5‑S1) and subsequent imaging showing L1‑S1 disc space disease, facet hypertrophy, and bilateral neuroforaminal narrowing.
- Private physician (Dr. F.) provided opinions (2008, 2017) that the veteran’s current lumbar disc disease is likely related to the in‑service injury.
- Veteran reports hazardous noise exposure in service and persistent tinnitus beginning at or shortly after separation; audiology exams document noise exposure and tinnitus complaints.
- Procedural posture: Board reopened the final 1978 back claim based on new and material evidence and adjudicated service connection for low back disorder and tinnitus; hearing loss claim remanded for further development (missing VA audiology records).
Issues
| Issue | Veteran's Argument | VA's Argument | Held |
|---|---|---|---|
| Reopen low back claim (new & material evidence) | New medical evidence (Dr. F. opinion) establishes nexus to service and is not cumulative | 1978 denial was final; new evidence must be non‑cumulative and raise reasonable possibility of substantiating claim | Reopened — new and material evidence found; claim reopened |
| Service connection for low back disorder | Back injury in service led to current L1‑S1 disc disease; continuity of symptoms and medical nexus opinions support causation | Alternative explanation: intervening 1978 work injury may have caused the surgical disc herniation | Granted — evidence in equipoise; resolved in Veteran’s favor; service connection for L1‑S1 disc disease with facet hypertrophy and neuroforaminal narrowing awarded |
| Service connection for tinnitus | Tinnitus began at/after separation and is attributable to in‑service hazardous noise exposure | Lack of contemporaneous complaints in service and negative 1973 hearing test undermines nexus | Granted — lay testimony and circumstances create equipoise; benefit of doubt to Veteran; service connection awarded |
| Service connection for bilateral hearing loss | Veteran claims hearing loss from service; record incomplete with missing VA audiology exams | VA notes missing audiology reports and inadequate record for adjudication | Remanded — AOJ to obtain missing VA treatment/audiology records and readjudicate |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (discussing VA duty to assist and claims development)
- Justus v. Principi, 3 Vet. App. 510 (1992) (presumption of credibility for new evidence in reopening determinations)
- Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (Board jurisdiction to decide whether to reopen previously denied claims)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (elements for establishing service connection)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (continuity of symptomatology test for certain claims)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competency of lay evidence for medical propositions)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt rule where evidence is in equipoise)