BVA9502824 DOCKET NO. 93-22 339 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a herniated nucleus pulposus. 2. Entitlement to service connection for defective hearing in the right ear. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran in this case had active service from February 1966 to July 1990. This appeal to the Board of Veterans' Appeals (Board) arises from an April 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 1993, a hearing was held in St. Petersburg, Florida, before a traveling member of the Board. A transcript of that hearing is included in the veteran's claims file. The case is now before the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran's argument is that the RO committed error in denying entitlement to service connection for a herniated nucleus pulposus of the lower back, defective hearing in the right ear, and tinnitus, in that such disabilities had their origins during his period of active military service. Specifically, it is asserted that the veteran currently suffers from a herniated nucleus pulposus of the lower back which was sustained as the result of an injury in service. He further contends that his current defective hearing in the right ear is the result of acoustic trauma from aircraft noise in service. Finally, it is asserted that the veteran's current tinnitus is, in like manner, the result of acoustic trauma from aircraft noise. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against the claim for service connection for a herniated nucleus pulposus. However, the record supports a grant of service connection for defective hearing in the right ear and chronic tinnitus. FINDINGS OF FACT 1. A herniated nucleus pulposus of the lower back is not shown to have been present in service, or at any time thereafter. 2. Chronic defective hearing in the right ear is shown to have been present in service. 3. Chronic tinnitus may not reasonably be dissociated from that same acoustic trauma responsible for the veteran's current service-connected bilateral sensorineural hearing loss. CONCLUSIONS OF LAW 1. A herniated nucleus pulposus of the lower back was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 1991); 38 C.F.R. § 3.102 (1993). 2. Chronic defective hearing in the right ear was incurred in active wartime service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.102 (1993). 3. The veteran's chronic tinnitus is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.310(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board finds that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). Entitlement to service connection generally requires that it be shown that a disease or injury was present in service, or is related in some way to an incident or incidents of service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). In addition, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1993). As to the issue of service connection for a herniated nucleus pulposus of the lower back, the Board notes that service connection is already in effect for osteoarthritis of the lumbar spine, evaluated as 10 percent disabling. In May 1973, during the veteran's period of active military service, he was seen for a complaint of pain in the lower back area, resulting in a diagnosis of low back spasm. Somewhat later, during the period from April to June 1979, the veteran was, once again, seen for complaints of low back pain. In late June, it was noted that the veteran had recently been hospitalized for an acute herniated nucleus pulposus with accompanying radiculopathy. He was described as "doing great," with only occasional twinges in the buttock area while walking. Both standing and sitting were accomplished without difficulty. The clinical impression was one of continuing improvement, with the veteran fit to resume jogging and flying. At the time of a service medical examination in January 1981, it was noted that the veteran had been hospitalized in April 1979 for low back pain with right radiculitis, diagnosed as a herniated nucleus pulposus, but that no myelogram or electromyogram had been done at that time. The veteran was described as responding well to bed rest and medications, with no recurrence. Radiographic examination disclosed the presence only of minimal degenerative changes of the lumbar spine. No pertinent diagnosis was noted. At the time of the veteran's service separation examination in May 1990, a physical examination of the spine and lower extremities was entirely within normal limits. Once again, no pertinent diagnosis was noted. In February 1993, a VA orthopedic examination was accomplished. At the time of said examination, the veteran gave a history of "severe" low back pain in service, with radiation into his right leg. The veteran walked with a normal gait, free of any limp. He undressed and dressed readily and smoothly, without discomfort, moving easily and with some agility from a sitting to a standing to a supine position. On further examination, the musculature of the veteran's back was symmetrical, with normal spinal curvature. There was no evidence of spinous tenderness, paravertebral spasm, or pelvic tilt. Range of motion measurement showed flexion of the lumbar spine to 83 degrees, with extension to 23 degrees. Lateral flexion was to 22 degrees on the right, and 21 degrees on the left. Rotation of the lumbar spine was to 45 degrees bilaterally. The veteran was able to toe and heel walk "equally." In the supine position, straight leg raising was negative at 66 degrees on the left, and 71 degrees on the right. No neurological deficits in the lower extremities were evident. The clinical impression was one of minimal osteoarthritis of the lumbar spine. In the opinion of the examiner, there existed "no physical evidence of a herniated disc at this time." Based on the aforementioned, it is clear that any inservice symptoms of a herniated nucleus pulposus were acute and transitory, responding favorably to conservative treatment, and resulting in no residual disability. Moreover, as of the time of the aforementioned VA orthopedic examination in February 1993, no herniated nucleus pulposus was in evidence. Based upon such findings, service connection for a herniated nucleus pulposus of the lower back must be denied. Turning to the issue of service connection for defective hearing in the right ear, the Board observes that, at the time of the veteran's service entrance examination in September 1965, hearing in the right ear was entirely within normal limits. However, as early as October 1967, there were in evidence a number of elevated pure tone thresholds in the veteran's right ear. On subsequent occasions during the veteran's period of active military service, these elevated thresholds were, once again, noted. Moreover, at the time of the veteran's service separation examination in May 1990, there was present a 30-decibel threshold at 4,000 Hertz and a 35-decibel threshold at 6,000 Hertz in the veteran's right ear. On VA ear, nose and throat examination in February 1993, the veteran gave a history of jet aircraft exposure "for many years," both as a mechanic and navigator. The veteran stated that he had in the past been told that he had a high frequency hearing loss. Audiometric examination revealed pure tone air conduction thresholds, in decibels, in the right ear as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 35 45 LEFT -- -- -- -- -- Speech discrimination in the veteran's right ear was 96 percent. The pertinent diagnosis noted was mild to moderate sensorineural hearing loss in the right ear. The Board notes that, pursuant to the provisions of 38 C.F.R. § 3.385 (1993), impaired hearing is considered to be a disability (by the VA) where the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. While it is true that, at the time of service separation, the veteran failed to meet the requirements of 38 C.F.R. § 3.385 (1993), as of the time of the recent VA audiometric examination in February 1993, these requirements had, obviously, been met. Accordingly, a grant of service connection for defective hearing in the right ear is warranted. Finally, regarding the issue of service connection for chronic tinnitus, we note that the veteran has a long history as a naval aviator. As previously noted, on recent VA ear, nose and throat examination in February 1993, he gave a history of noise exposure in the form of jet aircraft "for many years," both as a mechanic and navigator. In addition, as per the aforementioned discussion, service connection is now in effect for bilateral sensorineural hearing loss, apparently the result of acoustic trauma in service. The veteran has recently complained of a "constant ringing," somewhat worse on the left than the right, having a definite impact upon his daily life. Based on the aforementioned, and following a full review of the pertinent evidence of record, the Board is of the opinion that the veteran's current "ringing" (tinnitus) may not reasonably be dissociated from that same acoustic trauma responsible for his now service-connected sensorineural hearing loss. Accordingly, a grant of service connection for chronic tinnitus is warranted. In reaching the above determinations, we wish to make it clear that we have given due consideration to the veteran's testimony at the time of the hearing before a traveling member of the Board in September 1993. As regards the veteran's claims for service connection for right ear hearing loss and tinnitus, we find such testimony probative, and entirely credible. However, as concerns the issue of service connection for a herniated nucleus pulposus, such testimony is outweighed by the preponderance of other evidence. More specifically, the veteran's statements as to the incurrence of a herniated nucleus pulposus in service are of only limited value absent objective clinical evidence of such a disability at present. Accordingly, as noted above, service connection for a herniated nucleus pulposus of the lower back must be denied. ORDER Service connection for a herniated nucleus pulposus is denied. Service connection for defective hearing in the right ear is granted. Service connection for tinnitus is granted. J. U. JOHNSON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.