Citation Nr: 18153012 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-42 044 DATE: November 27, 2018 ORDER Entitlement to service connection for a left finger or hand condition is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to a compensable rating for right hand strain, status post fracture third and fourth fingers is remanded. Entitlement to service connection for degenerative joint disease (DJD) of the lumbosacral spine is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The Veteran has not had a left finger or hand condition at any time during the pendency of this appeal. 2. The Veteran’s tinnitus was not present in service or for many years thereafter and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left finger or hand condition have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1131. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including other organic diseases of the nervous system, which includes tinnitus, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where this is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Left Finger or Hand Condition The Veteran asserts that that his left finger or hand condition is related to 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, or disease. The Board concludes that the Veteran does not have a current diagnosis of a left finger or hand condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The May 2013 and January 2016 VA examiners evaluated the Veteran and determined that he did not have a diagnosis of a left finger condition. Further, despite treatment from October 2008 to present, VA treatment records do not contain a diagnosis or complaints of a left finger of hand condition. As such, service connection for a left finger or hand condition is not warranted. 2. Tinnitus The Veteran contends that his tinnitus is due to 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, or disease. The Board concludes that, while the Veteran has a diagnosis of tinnitus, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, 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 Veteran's service treatment records do not reflect any complaints of tinnitus. Further there are no complaints during the year following separation from service. The fist complaint of tinnitus is not until 2013, nearly 30 years after separation from service. As tinnitus was not present in service or during the presumptive period following separation, service connection on a presumptive basis is not warranted. Although service connection on a presumptive basis is not warranted, the Veteran can still be service connected on a direct basis. However, the greater weight of evidence is against a finding that the Veteran's tinnitus is due to service. The May 2013 VA examiner opined that the Veteran’s tinnitus is not at least as likely as not related to an in-service injury or disease. The examiner’s reasoning was that the Veteran reports his tinnitus began in approximately 2010, more than 25 years after service. REASONS FOR REMAND 1. Right hand strain, status post fracture third and fourth fingers is remanded. A July 2014 statement indicates that there may be outstanding and relevant Social Security Administration records. He remarked the “Social Security Administratin does not agree with what the VA say[s].” A remand is required to allow VA to request these records. 2. Entitlement to service connection for degenerative joint disease (DJD) of the lumbosacral spine is remanded. As above, the Veteran has indicated that there may be outstanding and relevant Social Security Administrartion records pertaining to his DJD. He remarked the “Social Security Administratin does not agree with what the VA say[s].” A remand is required to allow VA to request these records. 3. Entitlement to service connection for a left knee condition is remanded. As above, the Veteran has indicated that there may be outstanding and relevant Social Security Administrartion records pertaining to his left knee condtion. He remarked the “Social Security Administratin does not agree with what the VA say[s].” A remand is required to allow VA to request these records. The matter is REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. After undertaking any other development as may become indicated, re-adjudicate the remaining issues on appeal. 3. If any claim remains denied, provide the Veteran and his representative a supplemental statement of the case, and after an opportunity to respond, return the case to the Board. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel