Citation Nr: 18145111 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-09 574 DATE: October 26, 2018 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for depression is denied. REMANDED Entitlement to an initial disability rating greater than 10 percent for service-connected left knee tibial flare stress fracture is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a low back disability due to a disease or injury in service, to include specific in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran has tinnitus due to a disease or injury in service, to include specific in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that the Veteran has hypertension due to a disease or injury in service, to include specific in-service event, injury, or disease. 4. The preponderance of the evidence is against finding that the Veteran has depression due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for depression are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1975 to March 1978. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases, such as arthritis, organic diseases of the nervous system, cardiovascular-renal disease, and psychoses, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Entitlement to service connection for a low back disability. The Veteran asserts that he has a low back disability as a result of paratrooper duties during his period of active service. His service personnel records confirm that he was in receipt of the Parachute Badge. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of lumbar degenerative disc disease, and evidence shows that the Veteran was awarded the Parachute Badge during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of lumbar degenerative disc disease began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records reveals that there were no complaints of or treatment for a low back disability during his period of active service. Following service, a VA examination report dated in July 1978 shows no diagnosis related to the low back. Physical examination of the lumbar spine revealed forward flexion of 95 degrees, extension of 35 degrees, lateral flexion of 45 degrees, and rotation of 35 degrees. Under the General Rating Formula for Diseases and Injuries of the Spine, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. Additionally, the examiner noted that range of motion was good, and that there was no pain, swelling, or muscle spam. A VA examination report dated in November 2012 shows that the diagnosed degenerative disc disease of the lumbar spine was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was no mention of a back complaint in service and no evidence to support chronicity. A VA examination report dated in March 2016 shows that the Veteran was diagnosed with degenerative disc disease of the lumbar spine and intervertebral disc syndrome. The examiner opined that the diagnosed disability was less likely than not incurred in or caused by the parachute jumps during active service. The examiner explained that there was no evidence found of a related condition in the service treatment records. The Veteran was said to have finished service 37 years earlier. A VA examination report dated in June 2017 shows that the Veteran was said to have had a reported low back injury in September 2016 while being treated by a chiropractor. The examiner did not address whether the Veteran’s low back symptoms were related to his period of active service. The Board finds that medical opinions of the November 2012 and March 2016 VA examiners to be probative, because they were based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Taken together, the medical opinions establish that the Veteran’s disability is not at least as likely as not related to an in-service injury, event, or disease, including from parachute jumps in service. The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight. There is no diagnosis of arthritis of the low back during the first year following separation from active service, thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. While the Veteran believes that his low back disability is related to an in-service injury, event, or disease, including parachute jumps, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical knowledge that the Veteran has not demonstrated that he possesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinions of the VA medical examiners. Given the medical evidence against the claim, for the Board to conclude that the Veteran's low back disability was incurred during service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). 2. Entitlement to service connection for tinnitus. The Veteran asserts that he has tinnitus as a result of his period of active service. His service personnel records confirm that the Veteran served as a Power Generation Equipment Operator Mechanic, and VA has conceded acoustic trauma in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has reported “a little ringing every now and then,” he has denied any significant tinnitus, the preponderance of the evidence weighs against finding that the Veteran’s asserted tinnitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records reveals that there were no complaints of or treatment for tinnitus during his period of active service. Following service, a VA examination report dated in July 1978 shows no diagnosis related to tinnitus. The Veteran was said to hear well; there was no otic discharge; there were no deformities; and there was no infection. A VA audio examination report dated in January 2015 shows that the Veteran did not report a history of recurrent tinnitus. He reported “a little ringing every now and then,” and denied any significant tinnitus. The examiner opined that it was less likely than not that the asserted tinnitus was caused by or the result of active service. The examiner explained that there was no evidence of a hearing loss disability, and no evidence of pathologic tinnitus either during or after service. The examiner noted that the Veteran’s little ringing, every now and then, was not tinnitus secondary to hearing loss and/or cochlear damage, bilaterally. The examiner referenced a medical treatise to support his opinion. The Board finds the VA medical opinion to be probative, as it was based on an accurate medical history and provides a detailed explanation that contains a clear conclusion and supporting data. See Nieves-Rodriguez, 22 Vet. App. at 304. The medical opinion establishes that the Veteran’s asserted disability is not at least as likely as not related to active service. The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. There is also no diagnosis of tinnitus during the first year following separation from active service, thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. While the Veteran believes that he has tinnitus that is related to an in-service injury, event, or disease, including acoustic trauma, he is not competent to provide a nexus opinion in this case, particularly given that there is no evidence of continuity of symptoms since service. This issue of whether the Veteran’s current reports of sporadic ringing in the ears constitutes a diagnosis of tinnitus, and if so, whether the current disability is related to any injury or disease in service is medically complex, as it requires specialized medical knowledge that the Veteran has not demonstrated that he possesses. See Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the opinion of the VA medical examiner. Given the medical evidence against the claim, for the Board to conclude that the Veteran has tinnitus as a result of his period of active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; see Obert, 5 Vet. App. at 33. 3. Entitlement to service connection for hypertension. The Veteran asserts that he has hypertension that is manifested as a result of his period of active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran is currently being treated for hypertension, the preponderance of the evidence weighs against finding that the hypertension began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records reveals that there were no complaints of or treatment for hypertension during his period of active service. Following service, a VA examination report dated in July 1978 shows no diagnosis related to hypertension. Five separate blood pressure readings were taken during the examination, as follows, 124/74, 122/72, 126/74, 128/78, and 130/80. VA regulations define hypertension as diastolic blood pressure of predominantly 90 mm or greater or systolic blood pressure of predominantly 160 mm or greater with diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101 Note (1). The findings during this examination do not meet the criteria for a diagnosis of hypertension. VA outpatient treatment records dated from 2012 to 2017 show treatment for a history of hypertension. There is no indication in any of the records that the diagnosed hypertension is manifested as a result of the Veteran’s period of active service. Based on these findings, the preponderance of the evidence is against the Veteran’s claim of service connection for hypertension. The first diagnosis of hypertension of record is not until 2012, which is 34 years after active service; thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Service connection also is not warranted on a direct basis, as there is no medical evidence of any in-service incurrence or relationship between the current hypertension and service. While the Veteran believes that his hypertension is related to active service, he is not competent to provide a nexus opinion. This issue is medically complex, as it requires specialized medical knowledge that the Veteran has not demonstrated that he possesses. See Jandreau, 492 F.3d at 1377. Given the medical evidence against the claim, for the Board to conclude that the Veteran’s hypertension is the result of his period of active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; see Obert, 5 Vet. App. at 33. 4. Entitlement to service connection for depression. The Veteran asserts that he has depression that is manifested as a result of his period of active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran was given an assessment of depression in September 2014, the preponderance of the evidence weighs against finding that the depression began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records reveals that there were no complaints of or treatment for any psychiatric disorder, to include depression, during his period of active service. Following service, a VA examination report dated in July 1978 shows no diagnosis related to depression. A VA outpatient treatment record dated in September 2014 shows an assessment of depression. There is no indication that the depression was manifested as a result of the Veteran’s period of active service. Based on these findings, the preponderance of the evidence is against the Veteran’s claim of service connection for depression. The Veteran was not diagnosed with a psychosis within the year following his discharge from service; thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Service connection also is not warranted on a direct basis, as there is no medical evidence of any in-service incurrence or relationship between the post-service assessment of depression and service. While the Veteran believes that he has depression that is related to active service, he is not competent to provide a nexus opinion. This issue is medically complex, as it requires specialized medical knowledge that the Veteran has not demonstrated that he possesses. See Jandreau, 492 F.3d at 1377. Given the medical evidence against the claim, for the Board to conclude that the Veteran has depression as a result of active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; see Obert, 5 Vet. App. at 33. REASONS FOR REMAND Entitlement to an initial disability rating greater than 10 percent for service-connected left knee tibial flare stress fracture is remanded. The Veteran asserts that his service-connected left knee disability is more disabling than reflected by the currently assigned 10 percent disability rating. The Veteran underwent a VA examination in March 2016 for the purpose of establishing service connection. Physical examination demonstrated primarily pain and limitation of motion. The findings suggested that there was no instability or subluxation. Following this examination, a VA outpatient treatment record dated in January 2017 shows that the Veteran was treated in the emergency room after his left knee gave out and he fell (injuring his right knee). In February 2017, he reported that his left knee was “snapping and painful.” Radiological findings in April 2017 suggest that the left knee likely had a medial meniscus tear, with minimal to mild degenerative joint disease. As the evidence suggests that the disability may be worse than when originally rated, the Board finds that a new VA examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matter is REMANDED for the following action: (Continued on the next page)   Schedule the Veteran for an examination of the current severity of his service-connected left knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs