Citation Nr: 20005259 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-15 254 DATE: January 23, 2020 ORDER Service connection for bilateral hearing loss is denied. Service connection for an acquired psychiatric disorder, claimed as anxiety, is denied. Service connection for a right shoulder disorder is denied. Service connection for a left shoulder disorder is denied. Service connection for a right elbow disorder is denied. Service connection for a back disorder is denied. Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. Service connection for tinnitus is denied. Service connection for a headache disorder is denied. 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 bilateral hearing loss, an acquired psychiatric disorder, a right shoulder disorder, or a left knee disorder for VA disability compensation purposes. 2. The Veteran’s tinnitus and left shoulder, right elbow, back, right knee, and headache disorders were not shown in service or for many years thereafter and are not otherwise etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for an acquired psychiatric disorder, claimed as anxiety have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria for service connection for a right elbow disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 6. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 7. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 8. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 9. 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), 3.304, 3.307, 3.309, 3.385. 10. The criteria for service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1997 to September 2001. Service Connection 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety 3. Entitlement to service connection for a right shoulder disorder 4. Entitlement to service connection for a left shoulder disorder 5. Entitlement to service connection for a right elbow disorder 6. Entitlement to service connection for a back disorder 7. Entitlement to service connection for a left knee disorder 8. Entitlement to service connection for a right knee disorder 9. Entitlement to service connection for tinnitus 10. Entitlement to service connection for a headache disorder The Veteran is seeking service connection for bilateral hearing loss, tinnitus, and acquired psychiatric, right shoulder, left shoulder, right elbow, back, left knee, right knee, and headache disorders. He contends that service connection is warranted for these disorders because his service treatment records document that he sought treatment for these disorders during his active duty service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). As a preliminary matter, the Board finds that after a thorough review of the evidence of record, the evidence does not reflect that the Veteran has a current diagnosis of bilateral hearing loss, an acquired psychiatric disorder, including anxiety, a right shoulder disorder, or a left knee disorder, and has not had any of these disorders at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 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). With respect to the Veteran’s claimed bilateral hearing loss, the evidence of record does not show that he has a current diagnosis of hearing loss in either ear for VA compensation purposes. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, the report from the April 2016 VA examination documents the results of audiometric testing performed during the examination and shows that the auditory thresholds in his right ear were 10 decibels (dB) at 500 Hz, 15 dB at 1000 Hz, 20 dB at 2000 Hz, 20 dB at 3000 Hz, and 15 dB at 4000 Hz. With respect to his left ear, the examination report reflects that the auditory thresholds were 15 dB at 500 Hz, 15 dB at 1000 Hz, 20 dB at 2000 Hz, 20 dB at 3000 Hz, and 30 dB at 4000 Hz. The examination report also reflects that he had a speech discrimination score of 100 percent bilaterally. Further, the record is devoid of any evidence controverting the results of the audiometric testing set forth in the examination report or otherwise showing hearing loss in either ear for VA disability compensation purposes. Accordingly, service connection for bilateral hearing loss is not warranted because he does not have a current diagnosis of hearing loss in either ear under 38 C.F.R. § 3.385. With respect to the Veteran’s claimed acquired psychiatric disorder, the Board concludes that service connection is not warranted because he does not have a diagnosis of an acquired psychiatric disorder for VA compensation purposes. Specifically, no service treatment records or post-service treatment records reflect that he has ever been diagnosed with anxiety or any other acquired psychiatric disorder. In fact, in a January 2012 report of medical history, he denied frequent trouble sleeping and depression or excessive worry. Accordingly, service connection for an acquired psychiatric disorder is not warranted because he does not have a current diagnosis of anxiety or any other acquired psychiatric disorder. The Board concludes that service connection is also not warranted for the Veteran’s right shoulder and left knee disorders because he does not have a current diagnosis of those disorders. As an initial matter, no service treatment records or post-service treatment records reflect that he ever sought treatment for, reported signs or symptoms of, or was diagnosed with a right shoulder or left knee disorder. In fact, the report form a January 2012 examination reflects that the examining physician determined that his upper and lower extremities were “normal,” and his January 2012 report of medical history reflects that he denied arthritis, rheumatism, bursitis, impaired use of his legs, and knee trouble. Finally, the reports from April 2016 VA examinations of his shoulders and knees reflect that the examiner refused to diagnose him with either a right shoulder disorder or a left knee disorder. The Board acknowledges the Veteran’s assertions and belief that he has bilateral hearing loss, an acquired psychiatric disorder, a right shoulder disorder, and a left knee disorder, however, he is not competent to provide a diagnosis in this case. These issues are medically complex and require specialized medical education and knowledge of the interaction between multiple systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Further, to the extent that he is competent to report shoulder and knee pain, the Board acknowledges the holding in the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which indicates that pain can constitute a “disability” under 38 U.S.C. § 1110. However, the medical evidence is not sufficient to demonstrate a disability for VA disability compensation purposes. In this case, the Veteran has not specifically reported that he has experienced right shoulder and left knee pain to medical providers or in a statement in support of his claim. Thus, given that he hasn’t reported right shoulder and left knee pain, there is no evidence of functional limitations due to pain that cause impairment to his earning capacity. Accordingly, service connection is not warranted because the preponderance of the evidence is against finding that the Veteran has had bilateral hearing loss and acquired psychiatric, a right shoulder, and left knee disorders at any point during the period on appeal. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). With respect to the Veteran’s tinnitus and left shoulder, right elbow, back, right knee, and headache disorders, the Board concludes that although he has a current diagnosis of these disorders, the preponderance of the evidence weighs against finding that these disorders began during service or are otherwise etiologically related to his active duty service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Initially, with respect to tinnitus, the Board is willing to accept the Veteran’s assertions that he was exposed to acoustic trauma during his active duty service from a fired rocket given that soldiers with his specialty, an assaultman, are exposed to such noises. Nevertheless, the Veteran’s service treatment records fail to establish that his current tinnitus, left shoulder, right elbow, back, right knee, and headache disorders began during or are otherwise etiologically related to his active duty service. With respect to his tinnitus, no service treatment records reflect that he sought treatment for, reported signs or symptoms of, or was diagnosed with tinnitus during his active duty service. With respect to his left shoulder, right elbow, back, right knee, and headache disorders, the Board acknowledges that the Veteran’s reflect that he sought treatment for injuries related to his left shoulder, right elbow, back, and right knee and for headaches. However, the symptoms and injuries described in the following treatment records reflect that he had acute, self-limiting, and transient symptoms related to left shoulder, right elbow, back, right knee, and headache disorders, not chronic symptoms or diagnoses of chronic disorders. Specifically, a September 1998 service treatment record reflects that he reported left shoulder pain that radiated down his arm that was diagnosed as a trapezius strain and a subsequent treatment record from six days later showed that he did not experience any further pain or discomfort related to the strain. With respect to his right elbow, a March 2000 treatment record reflects that he reported elbow pain that was diagnosed as an elbow strain and a December 2000 treatment record reflects that he again reported elbow pain that was diagnosed as bursitis. With respect to his back, July and August 2000 treatment records reflect that he sought treatment for back pain during this period and that he was diagnosed with paraspinal muscle spasms secondary to a lumbar strain. With respect to his right knee, a March 1999 treatment record reflects that he reported right knee pain that was diagnosed as trauma to the right knee. Finally, with respect to headaches, an October 1998 treatment record reflects that he reported headaches, a July 1999 treatment record reflects that he reported slight headaches that were linked to probable dehydration, and a September 2000 treatment record reflects that he reported headaches that were linked to a probable viral illness. Thus, his service treatment records show that his symptoms of these disorders resolved after treatment because he did not seek subsequent treatment and that he was not diagnosed with chronic disorders during his active duty service. Accordingly, his service treatment records do not establish that service connection is warranted for his left shoulder, right elbow, back, right knee, and headache disorders. The post-service clinical evidence also fails to establish a relationship between the Veteran’s tinnitus and left shoulder, right elbow, back, right knee, and headache disorders and his active duty service. Here, there are no post-service treatment records reflecting that he has sought treatment for those disorders. In fact, the report from a January 2012 examination reflects that the examining physician determined that his spine, upper extremities, and lower extremities were “normal,” and that the examiner did not reference any issues related to headaches or tinnitus. Further, a January 2012 report of medical history reflects that the Veteran denied arthritis, rheumatism, or bursitis, impaired use of his arms, legs, hands, or feet, knee trouble, and frequent or severe headaches. Therefore, a continuity of symptoms has not been shown for his tinnitus and left shoulder, right elbow, back, right knee, and headache disorders based upon the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board acknowledges the Veteran’s statements regarding the history of his symptoms, including symptoms of tinnitus, left shoulder pain, right elbow pain, back pain, right knee pain, and headaches, since service. Although he is competent to report that he experienced the foregoing symptoms, he is not competent to determine that these symptoms were manifestations of a particular disorder. See Jandreau, 492 F.3d at 1377, 1377 n.4. Nevertheless, to the extent he contends that his disorders have persisted since service, the Board determines that the reported history of continued symptoms while competent, is nonetheless not probative in establishing the nexus element because the evidence shows that he has not sought treatment for tinnitus and left shoulder, right elbow, back, right knee, and headache disorders since his separation from active duty service. The fact that he has not sought treatment for these disorder since his active duty service weighs against his credibility. Moreover, his denial of arthritis, rheumatism, or bursitis, impaired use of his arms, legs, hands, or feet, knee trouble, and frequent or severe headaches in the January 2012 report of medical history and the report from the January 2012 examination that reflects that the examining physician determined that his spine, upper extremities, and lower extremities were “normal,” further weighs against his credibility in asserting that he has asserted continuous symptoms since his active duty service. Thus, a continuity of symptoms cannot be established based upon the Veteran’s assertions. Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, the Board finds that the weight of the competent evidence does not attribute the Veteran’s tinnitus and left shoulder, right elbow, back, right knee, and headache disorders to active duty service, despite his contentions to the contrary. Here, the Board places significant probative weight on the opinions of the April 2016 VA examiners, who evaluated the Veteran’s tinnitus and left shoulder, right elbow, back, right knee, and headache disorders and considered whether they were related to his active duty service. First, the hearing loss and tinnitus examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. In support of that opinion, the examiner explained that the brevity and infrequency of the Veteran’s symptoms resembled normal head noise rather than persistent tinnitus due to acoustic trauma and discussed medical literature that supported the conclusion that the Veteran’s description of tinnitus was not consistent with chronic pathological tinnitus and was more consistent with transient ear noise. With respect to his left shoulder disorder, the shoulder examiner opined that it was less likely than not incurred in or caused by his active duty service because although September 1998 treatment records documented left shoulder pain assessed as a strained trapezius, his service treatment and post-service treatment records were subsequently silent for a left shoulder condition. With respect to his right elbow disorder, the examiner opined that it was less likely than not incurred in or caused by his active duty service because the Veteran sustained a mild right elbow injury in 2000 that was assessed as a strain or sprain that resolved, no abnormalities were present on the April 2016 x-ray, and to the extent that he reported pain, it most likely related to the ulnar nerve being momentarily compressed against the bone in the elbow. With respect to his back disorder, the back examiner opined that it was less likely than not incurred in or caused by his active duty service because the Veteran’s documented back pain and spasms in July 2000 and August 2000 were acute episodes and subsequent medical records were silent for a low back condition recent to those reports of pain and spasms. With respect to his right knee disorder, the knee examiner opined that it was less likely than not incurred in or caused by his active duty service because his medical records were silent for a right knee condition after he reported right knee pain in March 1999. With respect to his headache disorder, the headache examiner opined that it was less likely than not incurred in or cause by his active duty service because his service treatment records documented random episodes of headaches that resolved after treatment and because there were no other references to headaches during or after service. Given the examiners’ reviews of the claims file, in-person examinations, expertise, and well-founded rationales, the examiners’ opinions are entitled to substantial probative weight. Additionally, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his active service and his tinnitus and left shoulder, right elbow, back, right knee, and headache disorders. Thus, the Board concludes that the medical evidence does not support a nexus between his tinnitus and left shoulder, right elbow, back, right knee, and headache disorders and his active duty service. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his disorders to his active duty service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his tinnitus and left shoulder, right elbow, back, right knee, and headache disorders. See Jandreau, 492 F.3d at 1377, n.4. Although he can provide competent testimony regarding symptoms, including tinnitus, left shoulder pain, right elbow pain, back pain, right knee pain, and headaches, these disorders are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that the Veteran believes that his tinnitus and left shoulder, right elbow, back, right knee, and headache disorders are related to his active duty service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claims seeking service connection for bilateral hearing loss, tinnitus, and acquired psychiatric, right shoulder, left shoulder, right elbow, back, left knee, right knee, and headache disorders, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Crosnicker, Associate Counsel