Citation Nr: 18142511 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 13-26 972 DATE: October 16, 2018 ORDER Entitlement to service connection for back disability is denied. Entitlement to service connection for neck disability, to include as secondary to back disability is denied. Entitlement to service connection for left knee disability is denied. Entitlement to service connection for right knee disability is denied. The claim for service connection for coronary heart disease is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus, to include as secondary to hearing loss is remanded. Entitlement to service connection for heart disability, to include as secondary to exposure to Agent Orange is remanded. FINDING OF FACTS 1. The Veteran’s back disability is not etiologically related to his military service. 2. The Veteran’s neck disability is not secondary to a service-connected disability. 3. The Veteran’s neck disability is not etiologically related to his military service. 4. The Veteran’s bilateral knee disability is not etiologically related to his military service. 5. The Veteran did not appeal the March 2010 rating decision that denied service connection for coronary heart disease. 6. Evidence received since March 2010 rating decision does relate to a previously unestablished element of the claim and it raises a reasonable probability of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for back disability have not been met. 38 U.S.C. §1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for neck disability, to include as secondary to back disability, have not been met. 38 U.S.C. §1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for left knee disability have not been met. 38 U.S.C. §1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. New and material evidence has been received, and the claim for service connection for coronary heart disease may be reopened. 38 U.S.C.§§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to October 1974. The Veteran also had service in the United States Navy Reserves. The claims were previously before the Board in August 2016. At that time, the Board remanded the claims to obtain the Veteran’s complete service treatment records (STR). Review of the record reflects that while the Veteran’s STRs are unavailable, there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Therefore, the Board will proceed to adjudicate the claims. As explained in detail below, the Veteran’s pervious claim for heart disability was adjudicated as a claim for service connection for coronary heart disease. However, the Board has re-characterized the issue on appeal as entitlement to service connection for heart disability, to make clear that the issue before the Board is entitlement to a hear disability, regardless of the particular diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection The Veteran contends that his back disability, neck disability, and bilateral knee disabilities were caused by his injury in service. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In the alternative, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Notably, in a case such as this, where the STRs are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an “adverse presumption” where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant’s allegation of injury or disease in service in these particular cases). A. Back The Veteran contends service connection for back disability is warranted. The Veteran has a diagnosis of degenerative arthritis of the spine. See August 2017 Disability Benefits Questionnaire (DBQ). Therefore, he has a current back disability. The Board notes that there is some indication that the Veteran sustained back injury in January 1972 before entering active service in August 1972. At that time, he was diagnosed with spondylolysis and pars interarticularis. In light of the missing STRs, there is no evidence that such condition was noted upon entrance. Nor is there evidence that his back condition clearly and unmistakably preexisted his miliary service and it was clearly and unmistakably not aggravated beyond the natural progression by an in-service event, injury, or illness. 38 U.S.C.§ 1111; 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board finds that the Veteran is presumed to have been sound upon entry into active service. Therefore, the Board will move forward to determine if there was an in-service incident or injury that caused the Veteran’s current disability. To that end, the Veteran testified that in 1974, while he was on active duty, he injured his back when a bomb exploded close to him at the Tower of London. See hearing transcript at 3. An April 2017 buddy statement from F.B who was stationed with the Veteran at the time, indicating that he knew that the Veteran was injured in the explosion. A newspaper article reporting bomb blast at the Tower of London in July 1974 is also part of the record. Furthermore, the Veteran’s spouse sent a letter in May 2016 indicating that the Veteran told her that he was at the Tower of London at the time of the explosion. Considering this evidence and affording the Veteran the benefit of the doubt, the Board finds that the Veteran likely was at the Tower of London explosion. Notwithstanding, the probative evidence of record does not establish that the Veteran back was injured during the explosion. After separating from active service in 1974, the Veteran was in the Navy reserves. The Veteran’s STRs from the time in the reserves reflect that the he reported back pain during physical examinations in August 1975, January 1976, and January 1978. However, the at no point during these multiple exams did the Veteran mention sustaining back injury in an explosion in 1974. In fact, during his January 1976 exam, he reported back injury due to car accident in January 1972, before he entered active service. Similarly, an April 1975 letter from a physician, Dr. J.F.B., who was treating the Veteran at the time reflects that he had spondylolysis and pars interarticularis caused by his 1972 back injury after a car accident. Dr. J.F.B further explained that this injury was aggravated when the Veteran lifted something heavy. This letter indicates that the Veteran did not report his claimed back injury from the explosion to his treating physician even though he reported aggravation of his pain after lifting heavy object. The Board finds that the examination reports in the Veteran’s reserve STRs and the April 1975 letter hold greater probative value than the Veteran’s statements regarding the onset of his back pain decades after the incident. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding contemporaneous evidence has greater probative value than history as reported by the claimant years later). As to the statements from F.B. and the Veteran’s spouse, as well as the newspaper article submitted, at best, they show that the Veteran was present at the Tower of London during the explosion. This evidence, however, does not establish that the Veteran specifically injured his back during the explosion, thereby does not have probative value in establishing that the Veteran’s back was injured during the explosion. Therefore, the Board finds that the preponderance of the evidence of record does not establish that the Veteran injured his back during active service. Notably, the Veteran’s primary care physician wrote a letter in February 2016 and October 2013 indicating that the Veteran’s back disability is more likely than not related to injury the Veteran sustained during the explosion. The physician reasoned that “medical physical [sic] records after the bomb blast noted knee pan, back pain, joint swelling, head injury, eye trouble and chest pain.” Given that the Veteran’s STRs from active service are missing, the record does not have medical records immediately following the explosion, the Board has considered whether the physician had medical records that were not part of the claims file. However, during the hearing, the Veteran testified that the physician only had his reserve STRs, which do not indicate injury related to the explosion. See hearing transcript at 14. For this reason, the Board finds the primary physician’s opinion inadequate to establish nexus between the Veteran’s claimed injury in service and his current diagnosis of degenerative arthritis of the spine. The Board recognizes that the Veteran had spondylolysis and pars interarticularis, while he was in the Navy reserves as noted in the August 1975 physical examination report. In the February 2016 and October 2013 letters, the Veteran’s the physician explained that the Veteran’s spondylolisthesis and spondylolysis noted during August 1975 is a result of trauma and stress fracture. However, the probative medical evidence of record does not reflect a current diagnosis of those conditions. Considering the Veteran’s diagnosis of degenerative arthritis of the spine, which is a chronic disability, the Board has considered whether service connection is warranted on presumptive basis. That is, service connection claim maybe presumptively met for certain chronic diseases that manifest in service or within one year following separation from service unless the condition is clearly attributable to causes other than service. 38 C.F.R. § 3.309 (a). Here, the Veteran does not contend nor does the evidence reflect that he was diagnosed with degenerative arthritis in service or within one year of service. Nor is there evidence to establish continuity of symptomatology, as the back pain the Veteran reported post active military service was attributed to spondylolysis and pars interarticularis, which is a condition that he currently does not have. 38 C.F.R. § 3.303 (b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While the Veteran believes his back disability is related to his injury at the Tower of London explosion, he is not competent to provide a nexus opinion in this case because the issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the Board is sympathetic to the Veteran’s claim, but the overall weight of the evidence is against a finding that a current disability, degenerative arthritis of the spine, is etiologically related to his military service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim.   B. Neck The Veteran contends that his neck disability is secondary to his back disability. See April 2013 Statement of Claim. A July 2013 DBQ reflects that the Veteran has a current diagnosis of herniated disk, cervical stenosis with spondylosis, and cervical myelopathy. Therefore, the Veteran has a current disability. As to the Veteran’s claim that his neck disability is secondary to his back disability, because the Board found that the back disability is not service connected, secondary service connection is cannot be established. However, the Board has also considered whether direct service connection is warranted. During the July 2013 DBQ, the Veteran reported that his neck pain started after he was injured in the Tower of London explosion. As noted above, considering that the Veteran’s STR is missing, the Board has closely and sympathetically reviewed the evidence of record for evidence that shows that neck injury occurred during the blast. During the hearing the Veteran testified that he injured his neck during the blast, but does not provide details regarding the nature of his injury or the lingering symptoms, if any, he experienced after his injury while he was in the military. See hearing transcript at 10. He testified that he remembers driving himself to base after the explosion. Id. 7. In a statement submitted May 2016, the Veteran stated that his injuries after the blast were cuts and bruises, and he remembers going to the dispensary on base to get bandaged. The Veteran’s reserve STRs do not show complaint or treatment for neck pain in the years following his active service. In fact, during his August 1975 evaluation, approximately 13 months after the incident, he reported problems with his spine and feet, but denied problem with his neck. Indeed, he reported several health concerns during multiple physical examinations during his time in the reserves, but mentioned nothing relating to a neck injury due to the Tower of London explosion. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). As noted above, the Board finds that the evidence supports finding that the Veteran was present during the Tower of London explosion, but the probative evidence of record does not support finding that he injured his neck during the blast. For this reason, the Board finds that the preponderance of the evidence of record does not support that he has in-service disease or injury of the neck to warrant service connection on direct basis. Without evidence that shows the second element of a service connection claim, the Board need not consider the nexus element of a service connection claim. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. C. Bilateral Knee The Veteran is seeking service connection for bilateral knee disability. The August 2017 DBQ shows that the Veteran has degenerative arthritis of the bilateral knee, which establishes a current disability. However, the probative evidence of record does not reflect that his current bilateral knee disabilities are etiological related to his military service. As noted above, there is evidence that the Veteran was there when an explosion occurred at the Tower of London in July 1974. That is, his spouse statement and buddy statement from F.B both indicate that the Veteran was involved in the explosion. However, this evidence is not probative as to whether his knees were injured during the explosion. The Veteran describing getting cuts and bruises after the explosion. He further testified that that he drove himself to base where he sought treatment at the dispensary. In the years following his active service, the Veteran reported problems with his back and feet, but did not report problems with his knees. See e.g. August 1975 Report of Medical Examination. The Board has considered the Veteran’s statements regarding bilateral knee injuries sustained in service, but finds them to be less probative than his reserve STRs, where he reported numerous injuries, but his bilateral knee injury. In other words, he appears to have reported all of his existing medical conditions without mentioning any problems related to bilateral knee injury due to his involvement in the blast. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). Because the Veteran was diagnosed with degenerative arthritis of the left and right knee, which is a chronic disability, the Board has considered whether service connection can be presumptive established. 38 C.F.R. § 3.309 (a). However, the evidence does not support that the Veteran was diagnosed with arthritis in service or within one year of service. Nor is there evidence to establish continuity of symptomatology, as the more probative evidence of record, particularly his STRs from his time in the reserves, do not reflect that the Veteran had bilateral knee pain or any other symptom of his current condition, in the years following his separation from active service. 38 C.F.R. § 3.303 (b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In sum, absent evidence showing in service bilateral knee injury, service connection for right and left knee disabilities is not warranted. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. New and material evidence In general, the RO’s determination not appealed within one year becomes a final decision, which may only be reopened with a showing of new and material evidence. 38 U.S.C. §§ 5108; 7105. “New” evidence means evidence not previously submitted to the RO. On the other hand, “material” evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence already of record at the time of the last denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In this case, the March 2010 rating decision that denied service connection for coronary heart disease is final because it was not appealed within one year. At that time, the RO denied the claim on the basis that the evidence did not show a nexus between a current disability and his military service. Since that time, in May 2016, the Veteran testified at videoconference hearing before the undersigned Veteran Law Judge. His testimony is new evidence as it was not previously considered when the RO issued the March 2010 rating decision. To the extent the Veteran testified that he was exposed to Agent Orange in service, it is material evidence that goes towards establishing nexus on presumptive basis, previously unestablished element of a service connection claim. In light of the low threshold for reopening a claim noted above, the Board finds that the Veteran’s testimony is new and material evidence that warrants reopening the claim. REMANDED ISSUES The Board regrets further delay, but additional development is necessary before adjudicating the remaining claims As to the claim for hearing loss, the Veteran contends that he had acoustic trauma because he was involved in the Tower of London explosion in July 1974. The Veteran underwent examinations in September 2012 and August 2017, where the examiners concluded that Veteran’s hearing loss is less likely than not related to his military service. The examiner’s rational indicates that the Veteran’s separation examination did not show hearing loss. However, that is not sufficient rational to support the conclusion. With respect to the Veteran’s claim for tinnitus, there is evidence to suggest that it is related to his bilateral hearing loss. To that end, during the August 2017, the examiner stated that the Veteran’s tinnitus is a symptom associated with hearing loss. As such, the issue is inextricably intertwined with the claim for bilateral hearing loss. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two claims are “inextricably intertwined” when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other). Regarding the Veteran’s claim for service connection for heart disability, a March 2010 medical opinion concluded that it is less likely than not that the Veteran’s heart condition is related to his heart murmur noted in service. The examiner, however, does not provide sufficient rational to support the conclusion. The other medical opinions of record such as the August 2017 DBQ and opinion from Dr. S. B, do not specifically address the Veteran’s heart murmur in service. Therefore, a remand is necessary to obtain an adequate opinion that considers the Veteran’s treatment for heart murmur in service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his bilateral hearing loss and tinnitus. The claims file should be made available to the examiner, who should indicate in his/her report that the file was reviewed as part of the examination. The examiner should take a complete history from the Veteran. All indicated tests and studies should be completed. The examiner must describe all pertinent symptomatology. Following the completion of the examination, the examiner should provide an opinion answering the following questions: Is the Veteran’s hearing loss at least as likely as not (a 50 percent or greater probability) related to his military service? The Veteran’s tinnitus at least as likely as not (50 percent or greater probability) caused by his bilateral hearing loss; and Is it at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus has been aggravated by his service-connected bilateral hearing loss. The examiner is asked to address the Veteran’s lay statements and explain the impact, if any, of the Veteran’s noise exposure during the Tower of London explosion in July 1974. In addressing the plausibility or non-plausibility of delayed onset hearing loss, the examiner must discuss the Institute of Medicine (IOM) Report on noise exposure in the military, contemplating that the IOM report states that it is “unlikely” that the onset of hearing loss begins years after noise exposure occurs, but also states that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” The term “aggravated” in the above context means a permanent worsening of his symptoms, and not temporary or intermittent flare-ups, which resolve and return to the baseline level disability. A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case. 2. Schedule the Veteran for a VA examination to determine the etiology of his heart disability. The claims file should be made available to the examiner, who should indicate in his/her report that the file was reviewed as part of the examination. The examiner should take a complete history from the Veteran. All indicated tests and studies should be completed. The examiner must describe all pertinent symptomatology. Following the completion of the examination, the examiner should provide an opinion answering the following question: Is the Veteran’s heart disability at least as likely as not (a 50 percent or greater probability) related to his military service? The examiner is asked to consider and comment on the heart murmur and bicuspid aortic noted in service.   A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.SOLOMON