Citation Nr: 18151726 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-45 688 DATE: November 20, 2018 ORDER Service connection for a cervical spine disorder, claimed as pain, is denied. Service connection for a lumbar spine disorder, claimed as low back pain, is denied. Service connection for tinnitus, claimed as a bilateral tinnitus, is denied. Service connection for obstructive sleep apnea (OSA) is denied. REMANDED Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a cervical spine disorder 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 a lumbar spine disorder 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 a tinnitus 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 OSA 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 cervical spine disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1987 to April 1991. Service Connection 1. Service connection for a cervical spine disorder and a lumbar spine disorder. The Veteran contends that he has had lumbar spine pain since 1989 in service, from falling down a ladder, as reported in a June 2016 VA medical record. He has generally indicated that his cervical spine disorder also began during 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 although the Veteran has a current diagnosis of a cervical spine and lumbar spine disorder, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses 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). The service treatment records generally show no complaints of, or treatment for, for the claimed disorders. An August 1987 report (2 years prior to the Veteran’s current claim that his back pain began in 1989), shows that the Veteran complained of real “bad body aches” for the past month, especially over the posterior neck. The examiner found that he had somatic complaints, probably tension related. The Veteran has numerous service treatment records documenting complaints of, or treatment for, various disorders (including multiple for his already service-connected knee disabilities), but not the cervical or lumbar spine. Rather, the service treatment records document numerous denials of problems and negative findings of problems. The April 1991 separation examiner found that the spine was normal; he specifically denied recurrent back pain. Similar findings and reports were made in a September 1989 physical examination. Following service, the record is silent for decades as to any complaints of, or treatment for, the cervical or lumbar spine. In a June 2016 VA medical record, the Veteran complained of chronic low back pain since 1989. Although VA medical records generally indicate occasional complaints of, or treatment for, the lumbar and cervical spine, they do not include any medical opinions as to etiology of such disorder. The only probative medical opinions as to the etiology of the Veteran’s disorders were made by the August 2013 VA examiner. The VA examiner found that the Veteran had mild, multilevel, age compatible, degenerative cervical joint and disc disease without myelopathy. The VA examiner also found age consistent, mild, multilevel degenerative lumbosacral disc and joint disease without myelopathy and age consistent mild bilateral sacroiliitis. The VA examiner opined that such disorders were not likely the result of military service. The examiner found that service treatment records did not document chronic neck, lumbosacral, or sacroiliac area pain during service. Furthermore, the physical examination, radiologic studies, and the examiner’s clinical experience did not support finding that it developed during service. Rather, the examiner indicated that the Veteran’s disorders were compatible or consistent with his age. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran is competent to report having experienced symptoms of lumbar or cervical pain chronically since service, but he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the currently claimed disabilities. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board further finds that the Veteran’s reports as to chronicity of pain since service are not credible. For example, he indicated to the VA examiner that his pain started in 1987 (as indicated by a service treatment record), but then reported to his June 2016 VA medical provider that it began in 1989 from a fall from a ladder. However, he reported to the VA medical provider that he did not seek medical attention at that time. In contrast, he told a different June 2016 VA medical provider (for traumatic brain injury (TBI)), that after he fell down the ladder in 1989 and “woke up” in medical where he stayed for about an hour. Furthermore, service treatment records do not document complaints of, or treatment for, such a fall. Service treatment records also document multiple denials of back pain, including on the separation examination. At that time, the Veteran even reported that he played basketball and football through service, though he currently claims to have had chronic neck and back pain during those years. Given the Veteran’s inconsistencies in report and the medical evidence of record, the Board finds that the Veteran’s claims of injury in service and chronic back and neck pain since service are not credible. As the preponderance of the evidence is against the claims, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Veteran’s claims for service connection for cervical and lumbar spine disorders are denied. 2. Service connection for tinnitus. The Veteran contends that his tinnitus began during service, has been intermittent in nature, and last 3 times a week for 10-15 seconds. During his September 2013 VA examination, he claimed to have tinnitus after being in a hyperbaric chamber in 1989. The question for the Board is whether the Veteran has tinnitus that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that although the Veteran has current complaints of tinnitus, the preponderance of the evidence weighs against finding that the claimed 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 v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records are generally negative as to any complaints of, or treatment for, tinnitus. There was one October 1989 complaint of a right ear hearing problem, which the provider diagnosed as right ear barotrauma and ordered no pressure related activated for one week and follow up on the ship. No follow up is of record. The April 1991 separation examiner found normal hearing and the Veteran specifically denied ear, nose, or throat trouble and hearing loss. There is no record of complaints of, or treatment for, tinnitus for decades following service. Indeed, in an April 2014 VA medical record, the Veteran specifically denied having tinnitus, hearing difficulty, and ear pain or drainage. The September 2013 VA examiner provided the only medical opinion as to the claim and found that the Veteran’s claimed tinnitus was less likely than not caused by service. The examiner noted the October 1989 complaint of a right ear hearing problem, and noted that the provider had found an infected and bulging tympanic membrane (eardrum) with no mention of tinnitus in either ear, and the Veteran was diagnosed with barotrauma. The examiner explained that hearing loss and tinnitus associated with middle ear pathology are typically temporary when the pathology is active. The Veteran had normal hearing throughout his military service. The enlistment, separation, and other hearing examinations showed no significant threshold shifts. The examiner found no objective evidence of acoustic trauma. On evaluation that day, hearing was normal in both ears. The examiner found normal hearing and no significant threshold shifts greater than normal measurement variability, and opined that there was no objective evidence of noise injury. The tinnitus is not clearly related to hearing loss; therefore, it was less likely as not that the tinnitus is due to military service, but more than likely due to presbycusis (age-related hearing loss) and/or some other etiology. As the opinion was based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data, this opinion is deemed probative. Nieves-Rodriguez v. Peake, supra. Furthermore, to the extent that the Veteran is claiming to have had chronic tinnitus since service, the Board finds that the Veteran’s reports are not credible. The Veteran has been inconsistent in his reports. After the October 1989 finding of barotrauma (after which he does not appear to have deemed the problem to have warranted additional treatment, though he had been directed to do so at that time, if the problem persisted), the Veteran had denied having ear and hearing problems in service, including in his 1991 separation examination. There were no complaints of, or treatment for, such disorder for decades following service, and in fact he denied having tinnitus in an April 2014 VA medical record. In his April 2013 service connection claim, the Veteran claimed to have bilateral tinnitus. In contrast, he reported to the VA examiner that he only had right ear tinnitus. Given such inconsistencies, the Board finds that the Veteran’s claim that he has had tinnitus since service is not credible. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, supra. The claim for service connection for tinnitus is denied. 3. Service connection for obstructive sleep apnea (OSA). The Veteran contends that he developed OSA due to service, but has not provided any arguments as to why he believes he has OSA due to service or indicated that it began during service. Although VA medical records document that the Veteran is currently diagnosed with OSA, the preponderance of the evidence weighs against finding that it began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, supra.; 38 C.F.R. § 3.303(a), (d). The service treatment records are negative for any complaints of, or treatment for, a sleep disorder. In his August 1989 physical and his April 1991 separation report of medical history, the Veteran specifically denied having frequent trouble sleeping. The evidence of record does not document any complaints of, or treatment for, OSA or OSA symptoms for decades following service. An August 2014 VA medical record documents that the Veteran had been provided an OSA screen. At that time, the Veteran reported that he was uncertain as to whether he had a prior diagnosis of OSA. A February 2015 VA medical record documents that the Veteran underwent a home, portable sleep study and received a diagnosis of moderate OSA. The VA medical provider recommended that the Veteran lose weight. Subsequent VA medical records otherwise documents occasional complaints of, or treatment for, OSA, but no VA medical records provide any opinions as to etiology. Given that the only positive evidence of record is the Veteran’s mere conclusory generalized implication that service event or illness caused his OSA, such implication is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Rather, the record shows that the disorder did not develop until decades following service, and the only possible probative indication as to what may have caused OSA would be the February 2015 VA medical provider recommending that weight loss would treat the disorder, indicating that the OSA was affected by weight. The preponderance of the evidence is against the claim; as such, the benefit of the doubt rule does not apply. Gilbert, supra. Service connection for OSA is denied. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. More information is needed to allow the Board to make a fully-informed decision. Provide the Veteran notice required for personal assault PTSD claims and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressors – both based on personal assault and other claimed stressors. If more details are needed, contact the Veteran to request the information. Perform all additional stressor development deemed necessary, for both personal assault and non-personal assault stressors. Associate any unassociated VA medical records with the claims file, including mental health treatment records, including from Lakeside Chicago from the mid-1990s, reported by the Veteran in an August 2015 VA medical record. The Board notes that VA medical records from the 1990s from the VA Medical Center in Chicago are associated with the claims file, but did not include the claimed mental health treatment records. Ask the Veteran to complete a VA Form 21-4142 for non-VA medical providers, including the therapist he reported seeing with his wife in a June 2016 VA medical record. Make two requests for the authorized records from identified provider(s), unless it is clear after the first request that a second request would be futile. After the above development has been accomplished, obtain a new VA examination. The July 2016 VA examiner did not diagnose PTSD, but VA medical providers have given such a diagnosis. Also, the VA examiner was unable to provide an opinion as to other acquired psychiatric disorder without resort to speculation. A new VA medical opinion should clarify whether the Veteran has ever had a diagnosis of PTSD or other acquired psychiatric disorder, and if so, whether such disorder is due to service. The matter is REMANDED for the following actions: 1. Send the Veteran notice required for PTSD claims, including claims based on personal assaults, and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressors – both based on personal assault and other claimed stressors. If more details are needed, contact the Veteran to request the information. 2. Ensure that all service personnel records are associated with the claims file. 3. Perform any additional stressor development warranted based on the Veteran’s reports. 4. Associate any unassociated VA medical records with the claims file, including mental health treatment records from Lakeside Chicago from the mid-1990s, reported by the Veteran in an August 2015 VA medical record. If no such records exist, note that fact in the claims file. 5. Ask the Veteran to complete a VA Form 21-4142 for non-VA medical providers, including the therapist he reported seeing with his wife in a June 2016 VA medical record. Make two requests for the authorized records from identified provider(s), unless it is clear after the first request that a second request would be futile. 6. After the above development has been accomplished, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). The claims file should be reviewed. The VA examiner should reconcile his/her opinion with any other conflicting opinion of record, including the July 2016 and VA medical records. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If one of the Veteran’s stressor(s) is based on an in-service personal assault, the examiner must opine whether the evidence of record, including the Veteran’s lay statements, and the Veteran’s service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio