Citation Nr: 18151590 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 13-32 857 DATE: November 20, 2018 ORDER Entitlement to service connection for central disk herniation at L4-L5, to include as secondary to a neck condition is denied. Entitlement to service connection for a bilateral knee condition, to include as secondary to a bilateral foot condition is denied. Entitlement to service connection for a bilateral foot condition, other than residuals of cold injury to feet, to include pes planus, metatarsalgia, and hammertoe is denied. Entitlement to service connection for an acquired psychiatric disorder is dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the central disc herniation at L4-L5 began during active service, or is otherwise related to an in-service injury, event, or disease, to include a neck injury. 2. The preponderance of the evidence is against finding that a bilateral knee condition began during active service, or is otherwise related to an in-service injury, event, or disease, to include a bilateral foot condition. 3. There is clear and unmistakable evidence that the Veteran’s pes planus was not aggravated in service. 4. In December 2017, prior to the promulgation of a decision in this appeal, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for unspecified trauma and stressor related disorder with depressive disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for central disk herniation at L4-L5 have not been satisfied. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a)-(b) (2018). 2. The criteria for service connection for a bilateral knee condition have not been satisfied. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a)-(b) (2018). 3. The criteria for service connection for a bilateral foot condition, other than residuals of cold injury to feet, to include pes planus, metatarsalgia, and hammertoe have not been satisfied. 38 U.S.C. §§ 1111, 1131, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2018). 4. The appeal concerning entitlement to service connection for an acquired psychiatric disorder is dismissed, as entitlement was already granted and there remains no justiciable case or controversy with respect to this claim. U.S.C. § 7105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to March 1983. This matter is before the Board on appeal from a July 2011 rating decision issued by the RO. The Board has issued two prior remands in this case in June 2014 and July 2015. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2014. A transcript of the hearing is associated with the electronic claims file. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448–49 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for central disk herniation at L4-L5, to include as secondary to a neck condition. The Veteran’s medical records show a May 2010 diagnosis of central disc herniation at L4-L5, along with multilevel spondylosis and degenerative disc disease. Thus, the Veteran has a current disability. Nevertheless, a review of the Veteran’s service treatment records shows no in-service event, injury, or disease with regard to his lumbar spine. Moreover, the Veteran had a VA examination for his lumbar spine in July 2013. At said exam, the Veteran was diagnosed with degeneration of intervertebral disc, but the examiner opined that this condition was less likely than not related to service because the Veteran was not diagnosed with or treated for said condition during service. The Veteran testified that his back injury is the result of a dirt bike accident during service and secondary to his neck condition. However, the Veteran is not service connected for any neck condition and his service treatment records do not show a back injury with regard to his 1982 dirt bike accident. Additionally, the Veteran is not competent to provide a nexus opinion in this case as the facts are medically complex. Jandreau, 492 F.3d 1372. Aside from the Veteran’s statements, the record contains no evidence that his central disc herniation began during service. Accordingly, the preponderance of the evidence is against the finding of an in-service event, injury, or disease with regard to the Veteran’s current central disc herniation. Moreover, the Veteran is not service connected for a neck condition. Therefore, entitlement to service connection for central disc herniation at L4-L5 is denied on both a direct and secondary basis. 2. Entitlement to service connection for a bilateral knee condition, to include as secondary to a bilateral foot condition. MRI results from August 2011 of the Veteran’s bilateral knees show multiple conditions including a tear of the left medial meniscus, erosion of left cartilage, mild excess fluid within the left suprapatellar joint space, an oblique tear of the right posterior horn of the medial meniscus, and right minimal suprapatellar effusion. As such, the Veteran has a current disability in his bilateral knees. However, a review of the record does not reveal an in-service event, injury, or disease with regard to his bilateral knees. The Veteran had a VA examination for his knees in July 2013 and was diagnosed with osteoarthritis of the left knee and no diagnosis was given for the right knee. The examiner opined that it was less likely than not that the Veteran’s left knee osteoarthritis was related to his military service because he was not diagnosed with or treated for such during service. As noted above, the Veteran’s service treatment records are silent for any complaints of bilateral knee pain and no such condition was noted on his separation exam. There is no medical evidence or credible lay evidence that arthritis or symptoms thereof manifested to a compensable degree within a year of his discharge from service. The Veteran contends that his bilateral knee condition is secondary to his cold weather bilateral foot condition. However, the Veteran is not service connected for a bilateral foot condition. Therefore, his bilateral knee condition cannot be secondarily service connected. Additionally, the Veteran is not competent to provide a nexus opinion in this case as the facts are medically complex. Jandreau, 492 F.3d 1372. The preponderance of the evidence is against the finding of an in-service event, injury, or disease with regard to the Veteran’s current bilateral knee condition. Moreover, the Veteran is not service connected for a bilateral foot condition. Therefore, entitlement to service connection for a bilateral knee condition is denied on both a direct and secondary basis. 3. Entitlement to service connection for a bilateral foot condition, other than residuals of cold injury to feet, to include pes planus, metatarsalgia, and hammertoe. At his February 1980 enlistment exam, the Veteran was noted to have a diagnosis of pes planus, moderate, asymptomatic. A veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. See 38 C.F.R. § 3.304 (b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the preexisting disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that “even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness”). VA may find a lack of aggravation under 38 U.S.C. § 1111 if clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096; but see Horn, 25 Vet. App. at 238 (emphasizing that “neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111”). If this burden is met, then the veteran is not entitled to service connection benefits. Wagner, 370 F.3d at 1096. For service connection claims involving a preexisting injury or disease, 38 U.S.C. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. If a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the Veteran may bring a claim for aggravation of that disability. In that case, § 1153 applies and the burden falls on the Veteran to establish an increase in severity during service. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 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. 38 C.F.R. § 3.306(b). Evidence is needed to support a finding that the preexisting disorder increased in severity in service. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Here, the Veteran was given a VA examination in April 2011 with regard to his bilateral foot condition. He was diagnosed with bilateral pes planus, but the examiner opined that because the Veteran did not sustain any significant trauma to his feet during service, his current mildly symptomatic bilateral pes planus was following the natural progression of the disease. The examiner also noted that the Veteran reported that since leaving service he has not had an automobile and has had to walk long distances every day. Moreover, the examiner noted that the Veteran reported that he has always had flat feet and always had pain in the feet requiring “special shoes” as a child. Accordingly, it has been established by clear and unmistakable evidence that the Veteran’s pes planus existed prior to service. Treatment records from April 2013 include a private physician’s opinion that the Veteran’s metatarsalgia, midfoot arthritis, and plantar fasciitis may be related to his previous military injury of frostbite. It should be noted that the Veteran’s claim for service connection for cold weather injuries is not currently before the Board, nevertheless because of the additional bilateral feet diagnoses, the Veteran was given another VA examination in March 2016. At this exam, the Veteran was diagnosed with bilateral pes planus and bilateral plantar fasciitis, the examiner found no diagnoses of metatarsalgia or hammertoes. The examiner opined that the Veteran’s bilateral pes planus was currently asymptomatic and based on his personal medical history, the Veteran has mild pain in the soles of his feet on occasion with prolonged standing or prolonged walking. The examiner noted these symptoms to be consistent with the normal progression of pes planus, finding the Veteran’s symptoms would most likely be essentially the same as they are now whether or not he had ever been in service. The Board finds this opinion to be well-reasoned and entitled to significant weight. As noted above, the Veteran was noted to have moderate pes planus on enlistment examination. The Board finds that there is clear and unmistakable evidence that there was no increase in the Veteran’s pes planus during service, and that alternatively any increase in such disability was due to the natural progress of the preexisting condition. As such, service connection for a bilateral foot condition, other than residuals of cold injury to feet, to include pes planus, metatarsalgia, and hammertoe is denied. 4. Entitlement to service connection for an acquired psychiatric disorder. Entitlement to service connection for an acquired psychiatric disorder, specifically unspecified trauma and stressor related disorder with depressive disorder was awarded by the RO in a December 2017 rating decision. As such, this claim is dismissed as a matter of law, as there remains no case or controversy; or dispute of fact or law, regarding this issue. See U.S.C. § 7105; see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). The benefit sought on appeal was granted in full. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was initially denied service connection for bilateral hearing loss due to no finding of a hearing impairment for VA purposes at an April 2011 VA examination. However, during the pendency of this claim, the Veteran was prescribed hearing aids at the Miami VA medical center, indicating a current diagnosis of bilateral hearing loss. Accordingly, the claim must be remanded in order to afford the Veteran another VA examination to determine the nature and etiology of the Veteran’s bilateral hearing loss. (While this claim is in Remand status, if he so desires, the Veteran has the opportunity to submit another opinion which must indicate that the audiologist reviewed the Veteran’s service audiograms and contain a supporting rationale for the opinion rendered.) 2. Entitlement to service connection for tinnitus is remanded. The Veteran was initially denied service connection for tinnitus due to a negative nexus opinion. At an April 2011 VA examination, it was opined that the Veteran’s tinnitus was not related to service because the Veteran did not even notice his tinnitus until July 2010. However, during the pendency of this claim the Veteran provided a June 2012 opinion from another VA physician that his tinnitus was likely related to his time in service and loud noises. Nevertheless, this opinion failed to provide any rationale regarding its conclusion. As such, the claim must be remanded in order to provide the Veteran with another VA examination to determine the nature and etiology of his tinnitus. (While this claim is in Remand status, if he so desires, the Veteran has the opportunity to submit another opinion which must indicate that the audiologist reviewed the Veteran’s service audiograms and service treatment records, and contain a supporting rationale for the opinion rendered.) The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hearing loss. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. The examiner should answer the following question: (a.) Does the Veteran have a current diagnosis of bilateral hearing loss for VA purposes? (b.) If so, is it at least as likely as not (i.e. probability of 50 percent or more) that the Veteran’s current bilateral hearing loss had its onset during or is otherwise related to his military service? A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to mere speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his tinnitus. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. The examiner should answer the following question: (a.) Is it at least as likely as not (i.e. probability of 50 percent or more) that the Veteran’s current tinnitus had its onset during or is otherwise related to his military service? A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to mere speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel