Citation Nr: 18150468 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-25 723 DATE: November 15, 2018 ORDER Service connection for degenerative arthritis, intravertebral disc syndrome, and spondylosis in the lumbar spine (lumbar spine disorder), including as secondary to the service-connected knee disabilities, is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with lumbar spine disorders of degenerative arthritis, intravertebral disc syndrome, and spondylosis; the Veteran sought treatment for back pain during service; symptoms of the current lumbar spine disorder were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of separation; the current lumbar spine disorder is not etiologically related to service, to include the back pain treated during service; the current lumbar spine disorder was not caused or worsened beyond its normal progression by the service-connected knee disabilities. 2. The Veteran currently has bilateral tinnitus; the Veteran was not exposed to acoustic trauma during service; symptoms of tinnitus were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; the current tinnitus manifested many years after service separation and is not causally or etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder, including as secondary to the service-connected knee disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.310. 2. Tinnitus was not incurred in active service and may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from August 1969 to July 1971. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran is currently diagnosed with degenerative arthritis and spondylosis in the lumbar spine (as arthritis) and has tinnitus (as an organic disease of the nervous system), which are “chronic diseases” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis and organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service Connection for a Lumbar Spine Disorder The Veteran contends that the current lumbar spine disorder is the result of back injuries treated during active service. The Veteran states that during training as a field wireman he fell from the top of a 35-foot pole on two separate occasions, and sought treatment for back pain during service. See August 2017 Statement in Support of Claim. The Veteran also asserts that the current lumbar spine disorder has been worsened by the service-connected knee disabilities. See May 2017 VA Form 9. At the outset, the Board finds that the Veteran is currently diagnosed with degenerative arthritis, intravertebral disc syndrome, and spondylosis in the lumbar spine. See November 2015 VA examination report. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran experienced back pain during service that was treated and resolved and is not related to the currently diagnosed lumbar spine disorder. A December 1969 service treatment record shows the Veteran complained of back pain for the last month, and a January 1970 service treatment record show the Veteran again complained of a recurrent low back strain; the back pain was treated with a heating pad and medication. Service treatment records show the back pain resolved after January 1970 as there were no further complaints of back pain thereafter. Although the Veteran reported a history of back trouble on a July 1971 Report of Medical History, the spine was found to be clinically normal during a July 1971 service separation examination. While the Veteran complained of back pain during service, the evidence does not demonstrate a chronic disease of the lumbar spine manifested in service as defined under 38 C.F.R. § 3.303(b), including chronic symptoms of arthritis during service. The chronicity rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis first shown as a clear cut clinical entity, at some later date. Rather, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” See 38 C.F.R. § 3.303(b). In this case, the complaints and treatment for back pain during service were transient findings relating to a low back strain. Regardless of the two complaints of back pain over the course of three months during service, the evidence does not demonstrate chronic symptoms of arthritis in the lumbar spine during service or continuous symptoms of arthritis in the lumbar spine since service separation. Notably, the subsequent July 1971 service separation examination report shows the Veteran’s spine and musculoskeletal systems were found to be clinically normal. As such, the Board finds that these were isolated instances of back pain and do not establish chronic symptoms of arthritis in the lumbar spine during service. Further, the lay and medical evidence weighs against a finding of continuous symptoms of arthritis in the lumbar spine since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either “chronic” in-service or “continuous” post-service symptoms. As discussed above, neither the service treatment records nor service examination reports indicated any history or findings or diagnosis of arthritis in the lumbar spine. The November 2015 VA examination report shows the earliest diagnosis for degenerative disc intervertebral osteochondritis and mild spondylosis appears in a September 2015 X-ray imaging study of the lumbar spine, over 44 years after service separation and 43 years outside of the applicable presumptive period. Service connection for a lumbar spine disorder may still be granted on a direct basis; however, in this case, the preponderance of the evidence is against finding that a nexus exists between the Veteran’s lumbar spine disorder and an in-service injury, disease, or event. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d). The Veteran underwent a VA examination in November 2015, the examination report for which contains the VA examiner’s opinion that the current lumbar spine disorder is less likely than not etiologically related to the back pain treated during service as service treatment records show the recurrent low back strain was acute and transitory which improved with proper treatment during service. Further, the VA examiner explained that it is well established in medical literature that lumbar degenerative disc disease with spondylosis is related to the normal aging process in individuals older than 40 years old. The Board further finds that the weight of the evidence is against finding that the current lumbar spine disorder was caused or worsened beyond its normal progression by the service-connected knee disabilities. The record includes an August 2017 private examination report and the private examiner’s opinion that there could be a causal relationship between the service-connected knee disabilities and the current lumbar spine disorder as the knee disabilities result in permanent abnormal accommodative capabilities nad permanent functional restrictions and limitations. The August 2017 private provider stated that there is a significant association between increased knee pain and low back pain; however, the private provider did not explain how the Veteran’s service-connected knee disabilities either caused or worsened the current lumbar spine disorder beyond its normal progression beyond stating that there is a significant association between knee pain and back pain. Furthermore, the August 2017 private provider’s opinion that there could be a causal relationship between the service-connected knee disabilities and the current lumbar spine disorder is speculative, thus, is of no probative value in establishing a relationship between the service-connected knee disabilities and the current lumbar spine disorder. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding evidence favorable to the veteran’s claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Bostain v. West, 11 Vet. App. 124, 128 (1998) (the Court held that a physician’s opinion that an unspecified preexisting service-related condition “may have” contributed to the veteran’s death was too speculative to be new and material evidence); Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was “possibly” suffering from a disability was deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-187 (treating physician’s opinion that service “could have” precipitated a disability found too speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician’s statement that the veteran “may” have had pertinent symptoms also implied “may or may not,” and was deemed speculative). The Veteran underwent another VA examination in October 2017. The October 2017 VA examination report reflects the VA examiner’s opinion that the current lumbar spine disorder is less likely than not the result of the service-connected knee disabilities. The October 2017 VA examiner explained that the back and knees are different anatomical sites and any incident or diagnosis that could affect one of the sites is independent from the other. The VA examiner further explained that the etiology of the current lumbar spine disorder is the result of natural changes that occur with the aging process. The VA examiner detailed how as a person ages, loss of water and protein content combined with years of repeated loading of the spinal discs can cause the development of small tears and an overall loss of elasticity; these natural changes make the discs less able to perform their normal function and more likely to being to lose height, bulge out into the spine column or develop larger tears and ruptures related to degenerative disc disease. As the October 2017 VA examiner’s opinion contains detailed rationale pertaining to the etiology of the current lumbar spine disorder, the Board finds it highly probative in demonstrating that the current lumbar spine disorder is not caused or worsened beyond its normal progression by the service-connected knee disabilities. Based on the foregoing, the Board finds that the Board finds that the weight of the evidence is against service connection for a lumbar spine disorder, including as secondary to the service-connected knee disabilities, and the claim must be denied. 2. Service Connection for Tinnitus The Veteran generally contends that service connection for tinnitus is warranted. See July 2015 Claim. Initially, the Board finds that the Veteran currently has tinnitus. See November 2015 VA examination report. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the current tinnitus was not incurred in, or otherwise etiologically related to active service, and does not meet the criteria for presumptive service connection. The evidence does not demonstrate that chronic symptoms of tinnitus manifested in service, that such symptoms were continuous since service separation, or that tinnitus manifested to a compensable degree within one year of service separation. Service treatment records do not reflect any complaints, symptoms, or diagnosis of tinnitus during service, and military personnel records do not indicate that the Veteran’s military occupation specialty exposed him to acoustic trauma. Comparison of a June 1969 preinduction audiometric examination and a July 1971 service separation audiometric examination shows no significant threshold shifts in decibel levels in either ear, and the July 1971 service separation examination reflects hearing acuity was tested to be within normal limits. Furthermore, the Veteran denied symptoms of hearing loss or ear trouble on the corresponding July 1971 Report of Medical History completed at service separation. As such, the lay and medical evidence weighs against a finding of chronic symptoms of tinnitus during service or continuous symptoms of tinnitus since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either “chronic” in service or “continuous” post-service symptoms. Further, the lay and medical evidence reflects the earliest reports of tinnitus during a November 2015 VA examination, over 44 years after service separation and 43 years after the presumptive period. As tinnitus did not manifest within one year of service separation, the criteria for manifestation of tinnitus to a compensable (i.e., at least 10 percent) degree within one year of service separation are not met. See 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran was provided with a VA audiometric examination in November 2015. During the November 2015 VA examination, the Veteran reported the onset of tinnitus many years ago, but was unable to specify the date or circumstances of the onset of tinnitus. Upon conclusion of the examination, the VA examiner opined that the current tinnitus is at least as likely as not a symptom associated with the Veteran’s non-service-connected hearing loss as tinnitus is known to be a symptom associated with hearing loss. The VA examiner further opined that the Veteran’s hearing loss and tinnitus are less likely than not related to any noise exposure during active service. The VA examiner explained that service treatment records do not reflect any complaints of hearing loss or tinnitus during service and the July 1971 service separation examination showed normal hearing acuity. The VA examiner proffered that hearing loss and tinnitus was the result of a natural aging process, hereditary factors, post-service noise exposure, or a combination of all these factors. In the Veteran’s case, the earliest evidence of any audiological treatment appears in an April 2009 VA treatment record, 38 years after service separation. Accordingly, the November 2015 VA examiner concluded that the claimed tinnitus is less likely than not related to any noise exposure during active service. (Continued on the next page)   Based on the foregoing, the weight of the competent evidence demonstrates no relationship between the Veteran’s current tinnitus disorder and active duty service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for tinnitus on direct, presumptive, or any other basis, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel