Citation Nr: 20005441 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-05 809A DATE: January 23, 2020 ORDER Entitlement to service connection for left inner-ear condition is denied. Entitlement to service connection for type I decompression sickness (DCS) of the right elbow is denied. Entitlement to service connection for residuals of type II cerebral DCS is denied. REMANDED Entitlement to service connection for a right knee injury is remanded. Entitlement to service connection for degenerative joint disease (DJD) of the lumbar spine is remanded FINDINGS OF FACT 1. The Veteran does not have a presently diagnosed inner left ear disability. 2. The Veteran does not have a presently diagnosed right elbow disability, to include Type I decompression sickness. 3. The Veteran does not have any residuals of a previous incident of Type II cerebral decompression sickness. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ear condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for type I decompression sickness (DCS) of the right elbow have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 3. The criteria for entitlement to service connection for residuals of type II cerebral decompression sickness (DCS) have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to May 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2017 and January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish entitlement to VA disability compensation, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of an injury or disease; and, (3) a causal link between the present disability and the injury or disease incurred or aggravated in-service (“nexus” requirement). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). In Saunders v. Wilkie, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment. 886 F.3d 1356, 1361-62 (2018). The Federal Circuit further explained that to establish a disability, “the [V]eteran will need to show that [his] pain reaches the level of a functional impairment of earning capacity.” Id. at 1368. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. See 38 C.F.R. § 3.304 (b). Cases in which the condition is noted on entrance are governed by the presumption of aggravation of a pre-existing disability contained in 38 U.S.C. § 1153, as opposed to that applicable under 38 U.S.C. § 1111 where the complained-of condition was not noted on entrance into service. This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Essentially, the Veteran is bringing a claim for service connection for aggravation of his pre-existing disorder when that disorder is noted at service entrance. The presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). Under 38 U.S.C. § 1111, once a veteran establishes worsening, “the burden shifts to the [VA] Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease.” Horn v. Shinseki, 25 Vet. App. 231, 235 n.6 (2012). If VA cannot do so, the increase is presumed to have been caused by active duty service even in the absence of direct evidence of causation. A veteran is competent to testify to that which is actually observed and is within the realm of personal knowledge. Competent lay testimony is confined to the features or symptoms of an injury or illness. See Layno v. Brown, 6 Vat. App. 465 (1994). A veteran need only demonstrate that there is an approximate balance of positive and negative evidence to establish entitlement to VA disability compensation. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Left Inner-Ear The Veteran seeks service connection of a left inner-ear disability. The Board finds the claim must be denied. As a preliminary matter, the Board acknowledges the Veteran’s contention that his claim is for “ear squeezes” sustained in service rather than a ruptured left ear. However, regardless of whether the Veteran sustained a ruptured inner ear or a series of ear squeezes, a view of the evidentiary record does not demonstrate that the Veteran has a current inner left ear disability distinct from his already service-connected bilateral hearing loss and tinnitus. A November 2017 VA examiner found the Veteran to be asymptomatic for pain with symmetrical hearing loss. The examiner acknowledged that the Veteran suffered from episodic barotrauma in service but noted there is no evidence of secondary after-effects. The Board has carefully reviewed the other evidence of record, but finds no further evidence of any inner ear diagnosis. The Board does acknowledge the Veteran’s own assertions regarding a present disability, but finds them unpersuasive. The diagnosis and etiology medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make a diagnostic conclusion regarding whether or not he currently suffers from an inner-ear disability, especially in light of the VA examiner’s conclusions to the contrary and the fact that a physical examination failed to support any such diagnosis. See id. In sum, the Board must conclude that the Veteran’s claim fails the primary criterion of service connection, namely a presently diagnosed inner-ear disability, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 2. Decompression Sickness, Type I, of the Right Elbow The Veteran seeks service connection of a right elbow disability, claimed as decompression sickness type I. The Board finds that the claim must be denied. The Board recognizes that the RO has characterized this claim as one for service connection based on aggravation of a preexisting condition. Specifically, the Veteran was noted upon entrance to have sustained a fractured elbow at age 10. The record also reflects that during service he was treated fro right elbow decompression sickness (DCS) type I. However, prior to making the determination of what standard of service connection may apply (aggravation of a preexisting disability, or direct service connection), the Board finds that the claim must be denied as failing the primary criterion of service connection, namely, a present disability. To the extent that The Veteran was evaluated for a right elbow condition in November 2017. At that time he denied any right elbow pain or other symptoms. Range of motion and functional limitations were all completely normal without any evidence of pain on examination. The examiner noted that the Veteran’s right elbow joint was normal and concluded that the Veteran had no current diagnosis associated with the claimed condition. The Board does not contest the Veteran’s assertion that he was treated for a right elbow DCS during active service, as such an illness was documented in the record. However, Absent a presently diagnosed right elbow disability, the claim fails the first criteria of service connection. As such, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 3. Cerebral Decompression Sickness, Type II The Veteran seeks service connection of cerebral DCS, Type II. The Board finds that the claim should be denied. As an initial matter, the Board recognizes that the Veteran was diagnosed with and treated for cerebral decompression sickness following a dive in 1988. This is confirmed in his service treatment record. A VA examiner in January 2018 noted that the condition was more likely than no incurred in service because there is evidence that he suffered from such a sickness in his service treatment record. However, the Board finds that the claim must be denied as the Veteran does not have any present residuals of that in-service injury. In January 2018, the Veteran was afforded a VA examination. At that time, he reported his 1988 incident, noting that he was immediately treated with hyperbaric treatments and his symptoms (at that time noted as right side arm and leg weakness) resolved immediately. Since that time, the Veteran denied any sequela from that event. Upon examination he showed no abnormal neurological symptoms. Muscle strength and reflexes were all normal. Speech and gait were normal. He exhibited no psychiatric symptoms which might be associated with such a diagnosis. Because the Veteran does not presently suffer from any residuals of cerebral decompression sickness, the claim fails the primary criteria of service connection. Therefore, the Board must deny the claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Right Knee The Veteran was afforded a VA examination in November 2017. At that time, the examiner opined in favor of a left knee disability being linked to his active service, particularly to parachute jumps and a car accident during active service. However, the examiner declined to opine regarding a right knee disability because no specific disability was diagnosed at that time. Nonetheless, pain in the right knee was observed, and the Veteran reported difficulty with standing, bending and squatting as a result of that right knee pain. Recent development from the Court of Appeals for the Federal Circuit has held that pain alone may qualify as a disability, if it results in functional impairment of earning capacity- in short, if the pain results in compensable symptoms under the diagnostic criteria for that particular joint. Saunders v. Wilkie, 886 F. 3d 1356 (Fed Cir. 2018). In light of this, the Board would request an addendum opinion which addresses any possible service connection of the Veteran’s right knee pain. 2. Lumbar Spine Degenerative Joint Disease The Veteran was afforded a VA examination on October 2017. At that time, a diagnosis of mild DJD of the lumbar spine, was confirmed. Although the Veteran’s service treatment records do not confirm any treatment for or complaints of a lumbar spine issue or diagnosis in service, the Veteran was in combat, was a jumpmaster and parachutist, and was involved in an in-service auto accident. Therefore, VA has conceded that there is a plausibility of lower spine injury attributable to service even though service treatment records do not show treatment for the condition. The Veteran was afforded a VA examination in October 2017. At tht time, the examiner opined against a nexus to service, noting that the Veteran’s spine condition correlated with normal degenerative chances that occur with aging process. Further, medical literature has evidence that degenerative changes are not more prevalent in parachute jumping activities vs. degenerative changes in the normal population. While this opinion is adequate to assess any possible nexus between his present DJD and his parachute jumping activities in service, it failed to address his other conceded injuries in service. Particularly, an in-service motor vehicle accident, as well as his other combat activities. Therefore, on remand, an addendum opinion should be obtained which assesses any possible nexus to those activities. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the right knee pain is at least as likely as not related to any incident of active service, to include his multiple parachute jumps and/or motor vehicle accident. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the mild DJD of the lumbar spine is at least as likely as not related to any incident of active service, to include his documented combat experience and/or motor vehicle accident. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel 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.