Citation Nr: 18154685 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 13-20 119 DATE: December 3, 2018 ORDER Service connection for a low back disability is granted. Service connection for a left leg disability as secondary to service-connected low back disability is granted. Service connection for an acquired psychiatric disability as secondary to service-connected coronary artery disease is granted. Service connection for a disability manifested by dizziness is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s current low back disability is as likely as not attributable to an in-service occurrence. 2. The Veteran’s current left leg disability, diagnosed as radiculopathy of the left lower extremity, is caused by his service-connected low back disability. 3. The Veteran’s current acquired psychiatric disability, diagnosed as anxiety disorder, is caused by his service-connected coronary artery disease. 4. The evidence on the whole does not establish a current disability manifested by dizziness beyond that associated with already service-connected coronary artery disease. 5. Tinnitus was not manifested during service, within a year of separation from service, or is related to an in-service occurrence. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a left leg disability as secondary to service-connected low back disability have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disability as secondary to service-connected coronary artery disease have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to service connection for a disability manifested as dizziness have not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to December 1972. The Board has recharacterized the Veteran’s claim for PTSD more broadly to an acquired psychiatric disorder, to include PTSD, In June 2017, the Board recharacterized the Veteran’s claim for PTSD more broadly to an acquired psychiatric disability, to include PTSD in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The Board also remanded these remaining issues on appeal for additional evidentiary development. The case has been returned to the Board for further appellate review. Pursuant to the Board’s June 2017 remand, the Agency of Original Jurisdiction (AOJ) obtained outstanding VA treatment records, conducted research on and verified the Veteran’s alleged stressor in service, scheduled VA examinations to determine nature and etiology of low back disability, left leg disability, dizziness, tinnitus, and psychiatric disorder, and readjudicated the claims in an October 2018 Supplemental Statements of the Case. Based on the foregoing actions, the Board finds that there has been substantial compliance with the June 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding claimants are entitled to compliance with Board remand instructions); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). With regard to the issues of entitlement to service connection for a disability manifested by dizziness and tinnitus, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Tinnitus, as an organic disease of the nervous system, can be service-connected on such a basis. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury pursuant to 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. 1. Low back disability 2. Left leg disability The Veteran was diagnosed with degenerative disc disease of lumbar spine at L4-L5 with left lower extremity radiculopathy. A March 2007 x ray did not show abnormalities in the spine. However, a September 2007 imaging study showed a broad based posterior central disc extrusion at L4-L5 with variable degrees of intervertebral disc desiccation. The Veteran asserts that he developed lower back problems during service after he was hit in the back by a tow bar. He describes pain in his lower back, radiating to his left hip and leg. The Veteran’s October 1968 entrance examination indicates no issues with low back or left leg. A February 1971 service treatment record reports that the Veteran complained of sore feet lasting for one month, but no disorder was found and fitting of comfortable boots was suggested. An April 11, 1971 entry indicates that a wrench struck his forehead, which resulted in a laceration of quarter of an inch in length; with a finding of no other apparent injuries. An April 29, 1971 entry indicates that the Veteran complained of back pain after lifting a heavy object and was diagnosed with muscle spasm. A December 1971 entry report that the Veteran’s foot was caught between a tow bar and a plane at work, which resulted in stretched tendon; the foot was treated with ice pack. This last incident was followed up extensively in service, and the Veteran’s October 1972 separation examination refers to painful right foot and ankle from the plane accident in December 1971. Otherwise, the separation examination indicates that the Veteran’s spine and left leg were normal. The next available medical evidence concerning his low back and left leg is dated from 2007, and there is abundance of evidence since that time documenting the Veteran’s low back and left leg conditions. For instance, a March 2007 VA treatment record indicates that the Veteran reported that he was hit by a tow bar in service, which left him with chronic low back pain radiating to bilateral legs intermittently with tingling in his legs going on for 2 years. In April 2007, the Veteran originally filed his claim for service connection for his low back and left leg injuries. In July 2007, the Veteran underwent a VA examination for his low back condition. At the examination, the Veteran reported that while moving a plane, a tow bar hit him in the back while in service, caused a brief loss of consciousness and his back and right leg were hurt. He complained of pain when he walked. The range of motion testing yielded a flexion limited to 70 degrees with pain at 50 degrees. The examiner opined that the Veteran’s back spasms were related to the reported injury in service, though the examiner did not provide a diagnosis of an underlying disability for his back based on a March 2007 x-ray study that did not reveal any abnormality. A follow-up examination was scheduled in September 2007 to determine a current diagnosis for the back condition, but the Veteran failed to report for the examination. Subsequently, the RO denied his claim for service connection for low back and left leg injury in November 2007, which became final. In June 2017, the Board reopened his claims for low back disability and left leg disability and remanded for further development. In February 2018, the Veteran underwent a VA examination for his back and left leg, where the Veteran was given a current diagnosis of degenerative disc disease of the lumbar spine with left lower extremity radiculopathy. The range of motion testing during the examination yielded normal range for his lumbar spine. Pain and lack of endurance were noted, and the examiner found that pain causes functional loss. As for the low back disability, the Board finds that although the July 2007 VA examiner did not render a diagnosis, his range of motion findings, specifically flexion limited to 70 degrees, met the diagnostic criteria for a compensable disability rating for a low back disorder. See 38 C.F.R. § 4.71a. As a result, the clinical findings revealed a low back disorder manifested by functional impairment due to pain, which the examiner explained was related to the reported in-service injury based on the in-person examination and available records. Two months later, the Veteran was diagnosed with a degenerative disc disease of the lumbar spine based on an imaging study conducted in September 2007. In contrast to the July 2007 VA medical opinion, a VA examiner in February 2018 explained why it is less likely as not that the Veteran’s current back condition is related to service, to include notations of lumbar muscle spasms. The Board finds that these VA medical opinions are competent and probative medical evidence as it appears that both physicians relied on accurate facts and medical history and gave fully articulated opinions supported by sound reasoning. As such, there is both favorable and unfavorable evidence of record that bears on the question of a nexus between the Veteran’s low back disability and in-service occurrence. For the reasons and bases discussed above and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for a low back disability as related to an in-service injury. See 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. As for the left leg disability, the February 2018 VA examiner opined that the Veteran’s current left leg condition is due to irritation of the sciatic nerve resulting from his lumbar disc extrusion. For the reasons and bases discussed above and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for a left leg disability as secondary to his now service-connected low back disability. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 3. Acquired psychiatric disability, to include PTSD The Veteran asserts that he suffers from PTSD as a result of witnessing a soldier blown up by gunfire while stationed in Vietnam. While review of the record does not show the Veteran has been diagnosed with PTSD, he has been diagnosed with other specified anxiety disorder during the appeal period, as noted in a February 2018 VA examination report. During that examination, the Veteran reported that he has anxiety about his health problems and the symptoms began after a 2015 heart surgery. The examiner observed that the Veteran’s anxiety symptoms are triggered by issues unrelated to service, such as health problems and ongoing stress, and there is mention that such issues began after the open-heart surgery in 2015. Review of VA treatment records further show the Veteran first reported symptoms of anxiety in March 2017. The VA treating physician noted the Veteran’s cardiac condition was creating some kind of uneasiness and anxiety, rendered a diagnosis of unspecified anxiety disorder, and prescribed medication to treat the anxiety. For the reasons and bases discussed above and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for an acquired psychiatric disability as secondary to his service-connected coronary artery disease. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 4. Disability manifested by dizziness The Veteran asserts that he suffers from chronic dizziness as a result of his in-service head injury in April 1971 that required sutures. As mentioned above, the Veteran’s service treatment records report two accidents in service, an April 1971 incident where he was struck by a wrench on his forehead and a December 1971 incident where his right foot was caught in between a tow bar and a plane. He had a laceration on his forehead as a result of the April 1971 incident, which healed within a month following the accident. The December 1971 accident resulted in an injury to his right foot and leg. Complaints or treatment for symptoms of dizziness, fainting, or loss of consciousness is nowhere found in his service treatment records. His October 1972 separation examination does not report any abnormality for his head, ears, or dizziness. In the October 1972 Report of Medical History, the Veteran denied history of dizziness or fainting spells, head injury, or ear trouble. The post-service medical evidence of record reveals that the Veteran sought treatment for his dizziness in 2008. Various attempts to ascertain the etiology of the Veteran’s chronic dizziness since then are well documented. An August 2008 private treatment record indicates that the Veteran was hypertensive with blood pressure 142 over 86 and a CT scan of the head was taken at that time showed a small focal area of increased attenuation in right frontal parietal white matter, which the evaluator thought might represent a small calcification or a small focal area of hemorrhage. He was admitted to a hospital in order to control blood pressure and for further evaluation of the brain. A CT scan taken during this admission indicates a small hemorrhage, which was thought related to a small cavernous angioma, though other etiologies were not excluded. He was prescribed meclizine, but he continued to have dizziness. A September 2008 follow-up treatment record indicates that the treating physician stated that the Veteran’s dizziness was probably not related to the abnormality found in the CT scans, but related to his blood pressure and labyrinthitis. In October 2009, the Veteran reported to a VA physician that he had vertigo since about 30 years ago, but it was fairly stable until last year when he was hospitalized. He described that during the episode of dizziness, the room spins horizontally and vertically sometimes and that it happens every night when he goes to bed and lasts for a few minutes. He reported that this dizziness caused him to quit working. Another CT scan was taken in February 2010, which revealed no significant interval change and the calcification of the deep white matter in the right frontal lobe was unchanged. In December 2010, the Veteran underwent an electro-video-nystagmography, which yielded no electrophysiological evidence of peripheral or central vestibular system disorder. In February 2011, the Veteran underwent a full balance function testing, which revealed no evidence of a peripheral or central vestibular weakness, although it did confirm ongoing disequilibrium. A December 2011 VA neurology note indicates that the Veteran’s condition was not responsive to vestibular rehabilitation. The medical evidence indicates that the Veteran continued to experience dizziness on and off during this period, and in May 2015, the Veteran went to an emergency room with complaints of epigastric pain with a dizziness spell and high blood pressure. Following this visit, the Veteran underwent a coronary artery bypass surgery in June 2015. The Veteran continued to complain of dizziness since the surgery. In February 2018, a VA examination for ear conditions was conducted. At the examination, the Veteran reported he developed dizziness after being knocked out/hit in the head in Vietnam and hit his head on the wing of an airplane, and has had dizziness ever since. Following the clinical evaluation and review of the claims file, the examiner rendered a diagnosis of chronic dizziness and opined that it is at least as likely that the Veteran’s disability is caused or aggravated by his service-connected coronary artery disease. The examiner explained the following: Dizziness is a known complication associated with [coronary artery disease] with [coronary artery bypass grafting] due to inadequate blood flow to the brain or inner ear. Thus, [sic] concur the [February 2011] VA treatment records suggesting that disequilibrium has a vascular etiology. In March 2018, a VA examination for residuals of traumatic brain injury (TBI) was conducted by a neurologist. At the examination, the Veteran reported that he was working on the bombs and the rack holding them and had loss of consciousness for about 3 hours. He reported that he woke up in a makeshift hospital and had a cut on his forehead. After the head injury, the Veteran reports, he had 2 days off. He also reported that he was in a plane accident in 1971 or 1972 and he was knocked out for about 3-5 minutes after being hit in the back by a tow bar. After examining the Veteran, the examiner found no subjective symptoms or any mental, physical, or neurological conditions, or residuals attributable to a TBI. Also, the examiner found that the Veteran’s reported difficulty with his memory could not be attributed to a TBI since the standardized cognitive screening was within normal limits. Based on the in-person examination and the evidence of record, the examiner found no records in the evidence documenting any symptoms consistent with post-concussion or TBI residuals. At a May 2018 VA examination for heart conditions, clinical findings revealed the Veteran’s service-connected coronary artery disease was manifested by symptomatology to include dyspnea, fatigue, and dizziness. In a subsequent June 2018 VA rating decision, the AOJ recharacterized the Veteran’s service-connected coronary artery disease to include chronic dizziness and continued the 60 percent disability rating. This rating was continued in a July 2018 VA rating decision. See 38 C.F.R. § 7104, Diagnostic Code 7017-7005 (contemplates dizziness in the rating criteria). Based on a review of the record, as discussed above, the Board finds that there is no indication the Veteran has a current disability manifested by dizziness beyond that associated with already service-connected coronary artery disease. The March 2018 VA examination refutes that the Veteran suffered a severe head injury while in service, which resulted in lasting residuals. The Veteran reported two in-service incidents of loss of consciousness during the March 2018 TBI examination, at least one of which resulted in loss of work for 2 days. However, his service treatment records do not indicate any loss of consciousness following any of the accidents that he was involved in. Also, no residuals from a TBI were reported by the Veteran at his separation examination, and none was found at the March 2018 examination. Second, the Veteran’s treatment records indicate that medical testing eliminated a possibility that his dizziness is related to vestibular disorder. Lastly, at various times during the course of treatment for the dizziness, more than one medical professionals at both VA and private facilities indicated that the Veteran’s dizziness is likely related to his heart condition. The February 2018 examiner agrees with such assessment. Having reviewed all the evidence of record, the Board affords more weight to the medical evidence, to include treating physicians’ assessment and the February 2018 medical opinion, than the Veteran’s lay statements in support of the claim because the Veteran’s lay statements are not competent to establish a medical diagnosis or to establish an etiology of a medical condition. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the medical issue in question). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. 5. Tinnitus The Veteran asserts that he has ringing in his ears that is related to his service, in particular, to an in-service head injury. The Veteran’s service treatment records, including his separation examination, are silent for any complaints of ringing in the ears. The medical evidence of record shows that the Veteran denied tinnitus when he initially saw a VA audiologist in Mary 2010. At the December 2010 VA audiological examination, the Veteran reported an onset of tinnitus 10 to 15 years prior, which dates back approximately to 1995 to 2000 and multiple years after separation from service in December 1972. At a May 2016 VA treatment session, the Veteran reported ringing in the ears for 20 years, which dates back to 1996, again multiple years after separation from service in December 1972. Based on the evidence, the Board finds that the Veteran has a current diagnosis of tinnitus during the appeal period; however, onset began multiple years after separation from service, specifically sometime in the 1990s. As a result, the Board finds that the Veteran’s tinnitus was not noted to be chronic during service manifested during service nor to a compensable degree within one year of separation from service. Accordingly, service connection for tinnitus as a chronic disease is not warranted. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), (d), 3.307(a)(3), 3.309(a). Therefore, the remaining issue before the Board is whether the Veteran’s tinnitus is related to an in-service occurrence, to include the Veteran’s reported in-service head injury. In January 2018, the Veteran underwent a VA audiology examination. The audiologist opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. The rationale was that noise-induced tinnitus occurs at the time of the noise exposure and does not develop years later and that “as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases” (citing the Institute of Medicine). The March 2018 VA neurologist refuted an in-service incurrence of a TBI with lasting residuals and opined that the Veteran’s tinnitus was less likely than not due to an in-service head injury because its onset would have been at the time of injury and not decades later. The probative evidence of record does not show a link between the Veteran’s tinnitus and an in-service occurrence. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The Board would further point out that the Veteran has not been shown to have the medical training, credentials, or other expertise needed to ascertain whether a disability that was first manifested more than a year after service could be etiologically related to such service. Having reviewed all the evidence of record, the Board affords more weight to the medical evidence, to include the January 2018 and March 2018 VA medical opinions, than the Veteran’s lay statements in support of the claim. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the medical issue in question). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel