Citation Nr: 1754849 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 16-61 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a thigh/hip disorder. 3. Entitlement to service connection for a groin disorder, to include an inguinal hernia and epididymitis. 4. Entitlement to service connection for bilateral pes planus and arthritis of the feet. 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for degenerative joint disease of the left knee. 7. Entitlement to service connection for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1989 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his current cervical spine disorder is related to his in-service neck injury. 2. There is no evidence of a current hip or thigh disorder. 3. There is no evidence that the Veteran has a current diagnosis of epididymitis or inguinal hernia, and no evidence his current erectile dysfunction is related to service. 4. The Veteran's pes planus was noted on his service entrance examination and did not increase in severity during service. There is no medical evidence relating the current arthritis of the feet to service. 5. The Veteran's tinnitus was not chronic in service, did not manifest within one year after service, and his symptoms have not been continuous since service, and it is otherwise unrelated to any in-service noise exposure. 6. The Veteran's left knee arthritis manifested many years after service and is not related to his in-service knee injury. 7. The Veteran's knee arthritis manifested many years after service and is not related to his in-service knee injury. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder have been met. 38 U.S.C. §§1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a hip/thigh disorder have not been met. 38 U.S.C. §§1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 3. The criteria for service connection for a groin disorder have not been met. 38 U.S.C. §§1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 4. The criteria for service connection for bilateral pes planus and arthritis of the feet have not been met. 38 U.S.C. §§1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 5. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. The criteria for service connection for left knee arthritis have not been met. 38 U.S.C. §§1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 7. The criteria for service connection for right knee arthritis have not been met. 38 U.S.C. §§1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Board finds that VA's duties to notify and assist have been met and all due process considerations have been satisfied. Except as discussed herein, the Veteran has not raised issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist). Moreover, while new evidence was received after the Statement of the Case, it was waived by the Veteran. Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The pertinent regulations were provided to the Veteran in the Statement of the Case and will not be repeated here. Service Connection for a Cervical Spine Disorder The Veteran contends that his current cervical spine disorder, including chronic pain and degenerative disc disease status post-discectomy and fusion, is due to playing basketball and football during service, including playing on behalf of his battalion and the Army in Europe. Service records, which appear to be complete, show the Veteran incurred trauma to the knees, thigh, groin, and neck while playing football in October 1989. A physical examination revealed that the Veteran was unable to turn his head to the left and he was diagnosed with muscle spasms in the neck. There were no subsequent complaints or treatment. A May 1991 physical evaluation noted that he was cleared for discharge, but the Veteran noted neck and knee pain on a VA Form 21-526 submitted in June 1991. Post-service treatment records show that the Veteran sought private treatment for cervical spine pain that radiated down his arm and finger numbness in September 2002. An October 2002 MRI revealed multi-level degenerative disc disease and disc herniation, for which the Veteran received surgery in January 2003. Importantly, in September 2017, the Veteran's treating neurosurgeon for the surgery opined that the Veteran's condition is related to service, including an in-service injury in Iraq. While that particular injury is not documented in the service records, the Veteran's testimony on this point was credible, and he states it occurred during his combat service when he couldn't get treatment because he was in the field. The Veteran also underwent a VA examination in August 2013 and, after thorough review of the Veteran's statements, service treatment records, and post-service records, the examiner opined that it was less likely than not that the Veteran's cervical spine disorder was related to service. She relied on the lack of chronicity in the available medical records and medical literature that fails to support a causative etiology between the in-service neck injury and current disorder. The Board finds that there is no reason either opinion is more probative than the other. As the evidence is in relative equipoise as to whether the current cervical spine disorder is related to service, reasonable doubt is resolved in favor of the Veteran and the claim for service connection for the cervical spine disorder is granted. Service Connection for a Thigh/Hip Disorder While the Veteran filed a claim for, and appealed the denial of, service connection for a hip/thigh disorder, the Veteran denied having a hip/thigh condition during his VA examination. His service records show treatment for one instance of a thigh muscle strain in service, but no subsequent complaints or diagnoses. Additionally, his private and VA medical records do not document a hip or thigh disorder. The Board thus finds that service connection is not warranted because there is no current disability. Service Connection for a Groin Disorder The Veteran contends that he has a current groin/testes disorder that began in service. Service records show that he injured his groin playing football in October 1989 and was treated for epididymitis during the end of December 1989 and the beginning of January 1990. In March 2001, the Veteran complained of right groin pain and reported a right inguinal hernia in service. He was referred to a surgeon and underwent a right inguinal hernia repair prior to January 2003, when records show a history of hernia repair. Current VA medical records and the August 2013 medical examination, however, do not show current complaints of epididymitis, an inguinal hernia, or groin/testes pain of any kind during the period on appeal. Additionally, the Veteran's contentions do not indicate that he has a current disorder, other than erectile dysfunction, which no medical professional has suggested is a result of the in-service groin injury or epididymitis. The Board thus finds that service connection is not warranted. Service Connection for Pes Planus and arthritis of the feet The Veteran contends that he is entitled to service connection for pes planus and arthritis of the feet. Mild, asymptomatic pes planus was noted on the Veteran's entrance examination in February 1989. The pes planus therefore preexisted service and the evidence must show that there was an increase in the disability during service to trigger the presumption of aggravation. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 C.F.R. § 3.306. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare-ups is not evidence of an increase in disability). The Board finds that the Veteran's preexisting pes planus did not increase in severity during service sufficient to trigger the presumption of aggravation. Service records, which appear to be complete, show that the Veteran complained of blisters on the bottom of his feet twice within two weeks in May 1989, and was referred to podiatry both times. Podiatry notes only show incision and drainage treatment for the blisters. There was no in-service treatment expressly for pes planus. There were no subsequent complaints or treatment related to the Veteran's feet and a May 1991 assessment noted that he was cleared for discharge. Importantly, after separation, the Veteran only noted neck and knee pain on a VA Form 21-526 submitted in June 1991. The Board thus finds that the evidence does not show symptoms reflecting worsening of the pes planus. The Board considered the Veteran's contentions that he was diagnosed with pes planus in service and prescribed pain medication and orthotics. The Board finds, however, that the contemporaneous medical records contradict his contentions. There is no evidence that the Veteran was prescribed orthotics or pain medication after entrance into service. Furthermore, even if he was given orthotics, the fact is the pes planus existed prior to service, so there would still need to be evidence indicating the underlying condition had worsened. There is none here. The Veteran also currently has degenerative joint disease of the feet. The VA examiner opined that the current bilateral foot conditions are less likely as not caused by or related to treatment and complaints of foot pain and blisters in March 1985. There are no medical opinions to the contrary. The Board thus finds that the weight of the competent evidence indicates the Veteran's arthritis of the feet is not related to in-service events, was not chronic in service, and did not manifest to a compensable degree within one year after service. Because the evidence does not show that the Veteran's preexisting pes planus worsened in service, the presumption of aggravation does not apply and service connection must be denied. Because the evidence does not show that the Veteran's arthritis of the feet is related to in-service events or manifested to a compensable degree within one year after service, service connection must be denied. Service Connection for Tinnitus The Veteran contends that he has experienced tinnitus since service due to exposure to acoustic trauma during weapons training. His DD-214 shows that he received a Marksmanship Badge for the M-16; thus, noise exposure is conceded. The Board finds, however, that the Veteran's tinnitus was not chronic in service, did not manifest within one year after service, and his symptoms have not been continuous since service. The Board further finds that his tinnitus is otherwise unrelated to service, to include any in-service noise exposure. Service records, which appear to be complete, show no complaints of hearing loss or tinnitus in service and a May 1991 physical assessment noted that he was cleared for discharge. Importantly, after separation, the Veteran only noted neck and knee pain on a VA Form 21-526 submitted in June 1991. Post-service private treatment records show normal HEENT examinations in March 2001, September 2002, and January 2003, and the Veteran did not note any tinnitus complaints during those examinations. He also had a normal HEENT evaluation in November 2012, when he established care at VA. In fact, the claims file does not show complaints of tinnitus until the Veteran filed for service connection for tinnitus in January 2013. The Veteran also denied tinnitus during a VA sleep consultation in March 2016. Importantly, the Veteran was afforded a VA examination in August 2013 and, after thorough review of the Veteran's statements, service treatment records, and post-service records, the examiner opined that it was less likely than not that the Veteran's tinnitus was related to service. She relied on the lack of chronicity in the available medical records and medical literature that weighs against delayed onset of hearing loss and tinnitus. The Board finds that the opinion is highly probative since the examiner provided a rationale based on science and the lay and medical evidence. The Board thus finds that the weight of the competent evidence indicates the Veteran's tinnitus is not related to in-service events, was not chronic in service, and did not manifest to a compensable degree within one year after service. Moreover, there was no continuity of symptomatology; from June 1991 to January 2013, the Veteran did not complain of tinnitus or hearing issues. The Board considered the Veteran's contentions that his tinnitus began in service and he lost his hearing in one ear due to explosions. The Board finds, however, that his contentions are not credible. The service records, which appear to be complete, show complaints and treatment for various injuries and illnesses, but do not indicate that he experienced hearing loss, tinnitus, or other residuals from explosions and the recent VA audiological examination shows the Veteran has normal hearing. Furthermore, the Veteran's contentions are contradicted by his medical records and statements made while seeking treatment. Despite undergoing several HEENT evaluations while seeking treatment for other medical issues, the Veteran did not complain about tinnitus until January 2013, when he filed for service connection. He further denied complaints of tinnitus in March 2016, after he filed for service connection. Accordingly, the Board finds that the weight of the evidence is against service connection for tinnitus on both a presumptive and direct basis, and the claim is denied. Service Connection for Bilateral Knee Arthritis The Veteran contends that his current bilateral knee arthritis is due to playing basketball and football during service, including playing on behalf of his battalion and the Army in Europe. While the Board finds this testimony credible, the Board finds, that the bilateral knee arthritis was not chronic in service, did not manifest within one year after service, and his symptoms have not been continuous since service. The Board further finds that the bilateral knee arthritis is otherwise unrelated to service, to include playing basketball and football. Service records, which appear to be complete, show the Veteran incurred trauma to the knees, thigh, groin, and neck while playing football in October 1989. A physical examination revealed a bilateral knee strain and left knee spasms, but no swelling or tenderness on flexion or extension. He was prescribed over-the-counter medication, ice, and crutches for three days, and there were no subsequent complaints or treatment visits. A May 1991 physical evaluation noted that he was cleared for discharge, but the Veteran noted neck and knee pain on a VA Form 21-526 submitted in June 1991. Post-service treatment records, including orthopedic records, however, do not show knee problems or an arthritis diagnosis until the August 2013 VA examination, more than 20 years after separation from service. Importantly, the Veteran was afforded a VA examination in August 2013 and, after thorough review of the Veteran's statements, service treatment records, and post-service records, the examiner opined that it was less likely than not that the Veteran's arthritis was related to service, including the in-service injury. She relied on the lack of chronicity in the available medical records and medical literature that fails to support a causative etiology between knee strains and arthritis. The Board finds that the opinion is highly probative since the examiner provided a rationale based on science and the lay and medical evidence. The Board thus finds that the weight of the competent evidence indicates the Veteran's arthritis is not related to in-service events, was not chronic in service, and did not manifest to a compensable degree within one year after service. Moreover, there was no continuity of symptomatology; from July 1991 to October 2012, the Veteran did not complain of knee pain. The Board considered the Veteran's contentions that his bilateral knee arthritis is related to his in-service participation in sports and the related injuries, as well as just the general wear and tear of military service. While the Board found his statements credible, as a layperson, however, he is not competent to relate his arthritis to an in-service injury or event, particularly in light of the extensive period of time between separation from service and diagnosis. To the extent the Veteran contends he has experienced a continuity of symptomatology, the Board finds that these contentions are not credible. Despite underdoing several physical examinations and orthopedic treatment for neck and groin issues from 2001 through 2003, the Veteran did not complain about knee pain until he filed for service connection. Accordingly, the Board finds that the weight of the evidence is against service connection for knee arthritis on both a presumptive and direct basis, and the claim is denied. ORDER Service connection for a cervical spine disorder is granted. Service connection for a thigh/hip disorder is denied. Service connection for a groin disorder, to include an inguinal hernia and epididymitis, is denied. Service connection for bilateral pes planus and arthritis of the feet is denied. Service connection for tinnitus is denied. Service connection for degenerative joint disease of the left knee is denied. Service connection for degenerative joint disease of the right knee is denied. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs