Citation Nr: 18157588 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 17-02 925 DATE: December 13, 2018 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for right arm numbness is denied. Entitlement to service connection for right leg pain and numbness is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of TBI. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of tinnitus. 3. The Veteran’s low back degenerative arthritis did not manifest to a compensable degree within the applicable presumptive period; it is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 4. The Veteran’s degenerative joint disease (DJD) of the cervical spine did not manifest to a compensable degree within the applicable presumptive period; it is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 5. The Veteran’s right arm numbness is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. 6. The Veteran’s right leg pain and numbness is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for low back degenerative arthritis are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 4. The criteria for service connection for DJD of the cervical spine are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 5. The criteria for service connection for right arm numbness are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 6. The criteria for service connection for right leg pain and numbness are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1979 to March 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision. Service Connection Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With a chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker, 708 F.3d at 1337. Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 1. Entitlement to service connection for a TBI The Veteran contends that he has a TBI as a result of a motor vehicle accident (MVA) he was involved in during his service in June 1980. The June 1980 MVA is documented in his service treatment records. 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 the Veteran does not have a current diagnosis of a TBI 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). A March 2015 VA examiner evaluated the Veteran and determined that, while he reports having difficulty remembering conversations that occurred after several days had passed, he did not have a diagnosis of TBI. On the evaluation, the Veteran did not demonstrate any problems with memory or executive function, and he reported a long work history without cognitive problems. Neither the Veteran’s service treatment records, his post-service VA treatment records, nor his non-VA treatment records provide a diagnosis, treatment, or indication of TBI. While the Veteran believes he has a current diagnosis of TBI, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 2. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus. 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 the Veteran does not have a current diagnosis of tinnitus 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). In his initial claim, the Veteran described his condition as a ringing in his ears that has been present since his active service. However, at the March 2015 VA examination, the Veteran reported an intermittent, sporadic, high pitch ringing in the ears that can occur at different times in each ear. The Veteran reported that this ringing sometimes occurred 6 to 7 times per day and lasted between 10 and 60 seconds at a time. The Veteran explained that this had been ongoing since his service. The March 2015 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of intermittent, sporadic, high pitched ringing in each ear lasting between 10 and 60 seconds at a time, the short duration of the symptoms precluded a diagnosis of tinnitus. The Veteran’s other treatment records from his time in service and from after his service ended do not contain a tinnitus diagnosis. While the Veteran believes he has a current diagnosis of tinnitus, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 3. Entitlement to service connection for a low back disability The Veteran contends that he has a lower back disability as a result of the June 1980 MVA and that his back pain has been present since his service. As previously described, certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that the Veteran has degenerative arthritis of the spine, spondylolisthesis, mild facet arthropathy of lumbar spine, and grade I anterolisthesis of L5 on S1. These degenerative changes to the Veteran’s lower back are a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). However, these degenerative changes were not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The Veteran’s service treatment records do not contain evidence of complaints or treatment for the Veteran’s back in the aftermath of the June 1980 MVA. The injuries at the time were not so severe that the providers who treated him sought x-rays. The Veteran did not seek treatment for his back for the remainder of his service career. According to the Veteran’s statements to the March 2015 VA examiner, he then worked jobs in security, delivery, and as a truck driver. Neither his VA nor his private treatment records indicate a history of treatment for this condition prior to his claim, and there is no diagnosis of degenerative changes to the Veteran’s spine until the March 2015 VA examination, decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of lower back pain since service and consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative changes to his spine. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to a combination of the Veteran’s long history of working jobs that were taxing on his back (delivery, driving, and security work) and the natural aging process. In particular, a March 2015 VA examiner examined the Veteran and reviewed his claims file, and determined that the Veteran’s current symptoms were due to the combination of age and occupational stress on his back, as the changes seen on the Veteran’s March 2015 x-rays revealed the kind of changes that were a natural part of growing older and the Veteran reported working various jobs that required additional strain on his lower back area which had caused the Veteran’s current disability. The examiner also emphasized that at the time of the Veteran’s in-service motor vehicle accident, the Veteran was diagnosed with only soft tissue injuries and was not x-rayed, making it unlikely that the current lower back disability related to such a temporally remote injury. Service connection for degenerative changes to the lower spine may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s degenerative changes to the spine and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The March 2015 VA examiner opined that the Veteran’s degenerative changes to the lower spine were not at least as likely as not related to an in-service injury, event, or disease, including the June 1980 MVA. The rationale was that the changes seen to the Veteran’s spine were consistent with the natural aging process and with the strains placed on the Veteran’s back in his post-service career. While the Veteran believes his lower back disability is related to his in-service MVA, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 4. Entitlement to service connection for a neck disability The Veteran contends that he has a neck disability as a result of an in-service June 1980 MVA. As previously described, certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has intervertebral disc syndrome and mild multilevel DJD, which is a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The Veteran’s service treatment records do not indicate a history of in-service neck complaints or treatment. The available post-service treatment records do not indicate that the degenerative changes to the Veteran’s neck were diagnosed until the March 2015 VA examination. While the Veteran is competent to report having experienced symptoms of neck pain since service and consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative changes to his cervical spine. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to the natural aging process and the occupational stresses from jobs he worked that placed a strain on his neck area. The March 2015 VA examiner examined the Veteran and reviewed his claims file, and determined that the degenerative changes seen on the x-rays taken as part of that examination were consistent with the natural aging process and the occupational history reported by the Veteran, and emphasized that the MVA in question had resulted only in soft tissue injuries and had occurred so long ago that it was unlikely to be the cause of the current neck disability. Service connection for degenerative changes of the cervical spine may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s degenerative changes of the cervical spine and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The March 2015 VA examiner opined that the Veteran’s degenerative changes of the cervical spine were not at least as likely as not related to an in-service injury, event, or disease, including the in-service MVA. The rationale was that the changes seen on the x-rays revealed mild DJD which is a part of the natural process of aging, that the Veteran worked different jobs that required additional strain on his neck area, and that the type of injuries diagnosed as a result of the in-service MVA were not at least as likely as not the source of this neck disability so many years later. While the Veteran believes the degenerative changes to his neck are related to an in-service MVA, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 5. Entitlement to service connection for right arm numbness The Veteran contends that he has right arm numbness secondary to the degenerative changes in his neck. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by a service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of radiculopathy of the right arm, the preponderance of the evidence is against finding that the Veteran’s right arm radiculopathy is proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The March 2015 VA examiner documented that the Veteran’s right arm radiculopathy was a neurological condition related to the degenerative changes in his neck in the March 2015 VA examination. However, the Veteran’s neck condition itself is not service-connected. Consequently, service connection cannot be granted on a secondary basis for right arm radiculopathy because it is secondary to a nonservice-connected condition. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a). Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s right arm radiculopathy is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Neither the Veteran nor the rest of the record provides any suggestion that his right arm radiculopathy has any etiology except to the Veteran’s nonservice-connected neck condition. 6. Entitlement to service connection for right leg pain and numbness The Veteran contends that he has right leg pain and numbness as a result of the degenerative changes to his lower spine. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by a service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of right leg radiculopathy, the preponderance of the evidence is against finding that the Veteran’s right leg radiculopathy is proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The March 2015 VA examiner examined the Veteran’s right leg radiculopathy and found that it was a neurological abnormality related to the degenerative changes in the Veteran’s lower spine. However, the degenerative changes in the Veteran’s lower spine are not themselves service-connected. Consequently, service connection cannot be granted for the right leg radiculopathy on a secondary basis because they are related to a nonservice-connected condition. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a). Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s right leg radiculopathy is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Neither the Veteran nor the rest of the record provides a suggestion that his right leg radiculopathy has any etiological origin other than the Veteran’s lower spine condition. REASONS FOR REMAND 1. Entitlement to service connection for a left and right knee condition is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for knee conditions because no VA examiner has opined whether the Veteran has current knee conditions that are caused by or related to the Veteran’s in-service MVA or the June 1979 left knee injury documented in his STRs. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any conditions of the right and left knees. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the June 1979 left knee injury for which the Veteran sought treatment or the June 1980 MVA. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel