Citation Nr: 18161123 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-54 968 DATE: December 28, 2018 ORDER Entitlement to service connection for a spine condition is denied. Entitlement to service connection for a right knee disorder is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. A preponderance of the evidence of record establishes that the Veteran’s current spine disability is less likely than not etiologically related to service. 2. A preponderance of the evidence of record establishes that the Veteran does not currently suffer a right knee disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a spine disorder have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. § 1110, 1131, 5103(a); 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to December 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claims for service connection for a spine condition, for a right knee disorder, for bilateral hearing loss, and for tinnitus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be disability resulting from that injury or disease. 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). Effective March 14, 2017, 38 C.F.R. sections 3.307 and 3.309 were amended to add eight diseases found to be associated with contaminants present in the water supply at Camp Lejeune. As amended, 38 C.F.R. §§ 3.307 and 3.309 establish presumptive service connection for veterans who served at Camp Lejeune for no less than 30 days from August 1, 1953, to December 31, 1987, and who have been diagnosed with any of the following eight diseases: adult leukemia; aplastic anemia and other myelodysplastic syndromes; bladder cancer; kidney cancer; liver cancer; multiple myeloma; non-Hodgkin’s lymphoma; and, Parkinson’s disease (emphasis added). As a preliminary matter, the Board acknowledges the Veteran’s note on his August 2014 claim that he believes the disabilities may be linked to exposure to contaminants in the water supply at Camp Lejeune. However, none of the conditions for which the Veteran presently seeks service connection are among the eight diseases presumptively connected to exposure to water contaminants at Camp Lejeune. Still, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claims will be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). Spine The Veteran argues that his back disability began in 1976 after an in-service injury. Service treatment records (STRs) recorded an injury in April 1975 to the Veteran’s back after he fell down the stairs. The documented noted lumbar spine pain radiating bilaterally, with tenderness to touch in the L3-L5 area. An entry in December 1978 recorded the Veteran slipping and injuring the medial aspect of the left scapula. At the Veteran’s December 1978 separation examination the Veteran’s spine was found to be within normal limits, and the Veteran reported that he did not then have and had not had recurrent back pain. A February 2015 VA treatment record related that the Veteran had experienced pain for several years including in his lower back. At a July 2015 VA examination, the examiner diagnosed the Veteran with a lumbosacral strain with bilateral IVDS and bilateral sciatic radiculopathy. The examiner understood the symptoms to have begun in 1974 while in service, and that the condition has worsened since. The examiner noted that the service records reflected back injuries in 1975 and 1978, but remarked that after each record there were no subsequent complaints or treatment sought. The examiner also pointed out that the Veteran’s separation exam recorded the Veteran’s spine as normal. On this basis, the examiner concluded that the Veteran’s spine condition was less likely than not caused by service. The Board finds the 2015 VA examination the most probative piece of evidence of record, and therefore concludes that the evidence of record establishes that the Veteran’s spine disability is less likely than not etiologically related to service. The Board acknowledges the Veteran’s statements that he believes his spine disease was caused by service, but notes that there is no evidence of record that the Veteran has the requisite medical training, experience, or credentials sufficient to establish a competency to offer such an opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009). Right Knee The Veteran argues that he suffers from a right knee disorder that was caused by service. The Veteran’s records are silent concerning a right knee injury or condition. The Veteran submitted a bare assertion that he suffers a right-knee disability, but as discussed above there is no evidence to support that he is credible to render a diagnosis. The evidence of record therefore fails to establish that the Veteran has a current disability, and therefore the Board must deny the claim for service connection. Brammer v. Derwinski, 3 Vet. Ap. 223, 225 (1992). REASONS FOR REMAND In connection with his claims for service connection the Veteran was scheduled for VA examinations for which he failed to appear. The Veteran called and explained that he missed the examinations because of a death in the family. See 38 C.F.R. 3.655(a). The Veteran was rescheduled for VA examinations, one of which he failed to attend. In an August 2015 submission the Veteran requested that he be rescheduled for the appointment he failed to make, because he had not understood what he was required to do. The Board will remand for the Veteran to be scheduled for a VA examination for the remaining outstanding service-connection claims for hearing loss and tinnitus disabilities. 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 hearing loss and/or tinnitus disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Please inform the Veteran that if he fails to attend the examination without good cause, VA will decide his claim based on the evidence of record. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Davis, Associate Counsel