Citation Nr: 20007901 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-53 571 DATE: January 30, 2020 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for major depressive disorder is denied. Entitlement to service connection for hypothyroidism is denied. Entitlement to service connection for diverticulitis is denied. Entitlement to service connection for cervical spine disability is denied. The application to reopen the claim for service connection for a lumbar spine disability is denied. REMAND Entitlement to service connection for rhinitis is remanded FINDINGS OF FACT 1. There is no persuasive evidence that the Veteran has bilateral hearing loss that is etiologically related to any event, injury or disease in service. 2. There is no persuasive evidence that the Veteran has major depressive disorder that is etiologically related to any event, injury or disease in service. 3. There is no persuasive evidence that the Veteran has hypothyroidism that is etiologically related to any event, injury or disease in service. 4. There is no persuasive evidence that the Veteran has diverticulitis that is etiologically related to any event, injury or disease in service. 5. There is no persuasive evidence that the Veteran has a cervical spine disability that is etiologically related to any event, injury or disease in services, and arthritis did not manifest within one year of the Veteran’s discharge from active duty. 6. In a March 2014 decision, the RO denied service connection for a lumbar spine disability. 7. Evidence received since the decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1111, 1112, 1131, 1137, 1153, 1154, 5107(b); 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a), 3.385. 2. The criteria for establishing service connection for major depressive disorder have not been met. 38 U.S.C.§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for establishing service connection for hypothyroidism have not been met. 38 U.S.C.§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for establishing service connection for diverticulitis have not been met. 38 U.S.C.§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The March 2014 rating decision denying service connection for a lumbar spine disability is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § § §§ 3.156, 19.129, 19.192. 7. New and material evidence has not been received regarding the claim of service connection for a lumbar spine disability, and the claim is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § § § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1968 to January 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Entitlement to service connection for hearing loss The Veteran contends that his current bilateral hearing loss is related to his service. After reviewing all the lay and medical evidence, the Board finds that the evidence of record does not demonstrate that the Veteran’s bilateral hearing loss is related to his military service. A review of the Veteran’s service treatment records (STRs) reveals no discussion of complaints, treatments, or diagnoses of any tinnitus problems. Throughout service the Veteran had normal hearing. During service the Veteran served as an artilleryman and heavy vehicles driver. As such, noise exposure to loud noises is conceded. In August 2013, the Veteran underwent an examination. The examiner acknowledged the Veteran had exposure to loud noise during service, however, on separation he did not have hearing loss. At the time of examination, the Veteran did not have a hearing loss disability for VA purposes. In April 2019, the Veteran was afforded another VA audio examination. He was found to have hearing loss for VA purposes. The examiner opined the Veteran’s bilateral hearing loss is less likely than not caused by or a result of an event in military service. The Veteran’s hearing tests were normal throughout service. There is no evidence of complaints of hearing loss for more than 40 years post-service. Medical literature indicates that exposure to high intensity noise levels can cause permanent or progressive hearing loss during prolonged periods of exposure. No retroactive hearing effects are expected after years of being exposed to high intensity noise. It is highly probable that VA evaluations show bilateral high frequency hearing loss that is due to presbycusis or hearing loss expected as a normal aging process or a combination of both factors (aging and noise exposure). The Veteran has reported he experienced hearing loss due to military noise as an artilleryman and heavy vehicles driver. The Board notes that the Veteran is competent to attest to being exposed to noise during military training as well as to experiencing symptoms such as hearing loss. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Determining the precise etiology of the Veteran’s hearing loss is not a simple question as there are conceivably multiple potential etiologies. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran’s intuition about the cause of his hearing loss is not sufficient to substantiate the claim. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (“The question of whether a particular medical issue is beyond the competence of a layperson—including both claimants and Board members—must be determined on a case-by-case basis.”) Indeed, any relationship between the current hearing loss, and symptoms of loss during service and experienced over the years must be established by medical evidence because hearing loss may be due to many different causes, thereby rendering the question of causation a matter of medical complexity requiring medical expertise to resolve. Here, there is no competent evidence that relates a current condition to any symptomatology noted in service or after service. In the absence of persuasive lay evidence of hearing loss ever since service, and medical opinion evidence related the current hearing loss to service the preponderance of the evidence is against the claim. Accordingly, service connection for bilateral hearing loss is not warranted. 2. Entitlement to service connection for major depressive disorder The Veteran claims he suffered from major depressive disorder as a result of his time in service. After reviewing all the lay and medical evidence, the Board finds that the evidence of record does not demonstrate that the Veteran’s major depressive disorder is related to his military service. STRs are negative for any psychiatric-related complaints. The Veteran underwent an examination in April 2019. He was diagnosed with unspecified depressive disorder. He has been treated for depressive disorder at the VAMC since 2005. The examiner opined the Veteran’s depressive disorder was less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale is he did not seek psychiatric treatment until 2005, several years post-discharge. Although the Veteran believes his major depressive disorder is proximately due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He is not competent to relate his current major depressive disorder and his service. Consequently, the Board gives more probative weight to the VA examiner’s April 2019 opinion. Accordingly, the opinion establishes that the Veteran’s major depressive disorder is not related to service. The rationale was the service treatment records do not show treatment for major depressive disorder for many years following service. The examiner’s opinion is the most probative evidence as to the nexus to service, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Veteran has not provided any competent opinion linking his current major depressive disorder to service. In other words, the most probative evidence of record does not show that the Veteran suffers from major depressive disorder directly due to service. Absent probative evidence linking his current major depressive disorder to service, service connection must be denied. 3. Entitlement to service connection for hypothyroidism The Veteran claims he suffers from hypothyroidism as a result of his time in service. After reviewing all the lay and medical evidence, the Board finds that the evidence of record does not demonstrate that the Veteran’s hypothyroidism is related to his military service. STRs are negative for hypothyroidism or any thyroid related complaints. The Veteran underwent an examination in April 2019. He was first diagnosed with hypothyroidism in an eye consultation in November 2007. The examiner opined it is less likely than not that hypothyroidism was incurred in or caused by an in-service injury, event, or illness. The Veteran was diagnosed with hypothyroidism in 2007—over 35 years post-discharge from service. The STRs are silent as to any diagnosis or symptoms of hypothyroidism during service. Although the Veteran believes his hypothyroidism is proximately due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. He is not competent to relate his current hypothyroidism and his service. Consequently, the Board gives more probative weight to the VA examiner’s April 2019 opinion. Accordingly, the opinion establishes that the Veteran’s hypothyroidism is not related to an in-service injury, event, or disease. The rationale was the service treatment records do not show treatment for hypothyroidism for many years following service. The examiner’s opinion is the most probative evidence as to the nexus to service, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Further, the Veteran has not provided any competent opinion linking his current hypothyroidism to service. In other words, the most probative evidence of record does not show that the Veteran suffers from hypothyroidism directly due to service. Absent probative evidence linking his current hypothyroidism to service, service connection must be denied. 4. Entitlement to service connection for diverticulitis The Veteran claims he suffered from diverticulitis as a result of his time in service. After reviewing all the lay and medical evidence, the Board finds that the evidence of record does not demonstrate that the Veteran’s diverticulitis is related to his military service. STRs are negative for any diverticulitis related complaints. The Veteran underwent an examination in April 2019. He was diagnosed with diverticulosis and colon polyps in 2012. The examiner opined it is less likely than not that diverticulitis was incurred in or caused by an in-service injury, event or illness. The rationale provided was the STRs are silent as to any diverticulitis symptoms during service, and he was diagnosed with diverticulosis and colonic polyps in 2012—42 years post-separation from service. Although the Veteran believes his diverticulitis is proximately due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. He is not competent to relate his current diverticulitis his service. Consequently, the Board gives more probative weight to the VA examiner’s April 2019 opinion. Accordingly, the opinion establishes that the Veteran’s diverticulitis is not related to an in-service injury, event, or disease. The rationale was the service treatment records do not show treatment for diverticulitis for many years following service. The examiner’s opinion is the most probative evidence as to the nexus to service, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Further, the Veteran has not provided any competent opinion linking his current diverticulitis to service. In other words, the most probative evidence of record does not show that the Veteran suffers from diverticulitis directly due to service. Absent probative evidence linking his current diverticulitis to service, service connection must be denied. 5. Entitlement to service connection for cervical spine disability The Veteran asserts that he suffers from a cervical spine disability as a result of his time in service. After reviewing all the lay and medical evidence, the Board finds that the evidence of record does not demonstrate that the Veteran’s cervical spine disability is related to his military service. The Veteran’s STRs are void for any complaints of or treatment for a back disability. Upon discharge he was not diagnosed with any cervical spine disability. The Veteran underwent a VA examination in April 2019. He was diagnosed with cervical intervertebral osteochondral changes at C5-C6 and cervical muscle spasm. The examiner concluded the claimed cervical spine disability is less likely than not incurred in or caused by an in-service injury, event, or illness. The Veteran was not diagnosed with a cervical condition until 2015—45 years post discharge. STRs are silent regarding any diagnosis or symptoms of a cervical spine disability during service, and there is no indication of a cervical spine disability within one year of discharge. The Board acknowledges that the Veteran is competent to describe symptoms that he is able to perceive through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In addition, arthritis is a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a), and therefore, the Veteran’s statements regarding continuity of symptomatology may be sufficient for purposes of establishing service connection. Although the Veteran believes his current neck disability is proximately due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Further, he was not shown to have arthritis in the first post-service year or for many years thereafter. His contentions that he experienced neck pain since service are not corroborated by the contemporaneous medical evidence of record, and had his symptoms been as significant as he now reports, he would have likely undergone treatment in the interceding years. Consequently, the Board does not afford the Veteran’s lay statements probative value. Conversely, the VA examiner’s opinion has significant probative value as it reflects consideration of all relevant facts—to include the Veteran’s lay statements regarding in-service injuries, and the in-service and post-service treatment records. It also provides a detailed rationale for the conclusions reached. Additionally, the evidence does not reflect a conflicting medical opinion finding a positive relationship between the Veteran’s current disability and any in-service event, injury, or disease. In other words, the most probative evidence of record does not show that his neck disability is directly due to service or presumptively related to service. Absent probative evidence linking his claimed cervical spine disability to service, service connection must be denied. 6. Whether there is new and material evidence to reopen the claim of entitlement to service connection for a lumbar spine disability The Veteran has asserted he suffers from a lumbar spine disability as a result of his time in service. The Veteran’s STRs are void for any reports of back pain or treatment for a back disability. There is no mention of a diagnosis, and upon discharge, there is no indication of a back disability. In March 2014, the RO denied service connection for a lumbar spine disability. The basis for the denial was the evidence does not show a disease or injury in service, and there is no evidence the current condition was incurred in service. The Veteran filed to reopen his claim for service connection in September 2015. Since the March 2014 decision, statements in support of his claim and medical records have been associated with the file. Though the medical records are new, the records are not material. The evidence and contentions are essentially duplicative the evidence of record at the time of the March 2014 rating decision. The Veteran has submitted no new evidence that raises a reasonable possibility of substantiating the claim. Based on the above evidence, the Board finds that new and material evidence has not been received to reopen the claim of service connection for a back disability. The statements in support and treatment records are new, but the evidence does not raise a reasonable possibility of substantiating the claim. There has been no evidence received since the March 2014 denial that raises the reasonable possibility of substantiating the claim. Even if the claim were to be reopened, VA’s duty to assist would not be triggered, as there is no indication the Veteran suffered from a back disability as a result of his time in service. The reopening of the claim is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for rhinitis is remanded The Veteran has claimed rhinitis as directly due to service or in the alternative secondary to his service-connected tinnitus or service-connected headaches. The Veteran underwent an examination in April 2019. The examiner opined his rhinitis is less likely than not due to service. An examination was conducted by a physician in October 2019, that appears to have an opinion linking the rhinitis to service, however it is not entirely legible. As there is no opinion on record of secondary service connection and there is an illegible opinion, a remand is necessary. The matters are REMANDED for the following action: 1. If possible, obtain a legible, clear, copy of the October 2019 physician examination and statement. 2. Forward the Veteran’s claims file to an appropriate examiner for a supplemental opinion on the etiology of the claimed rhinitis. It is left to the examiner’s discretion whether to examine the Veteran. Following a review of the claims file, the examiner is should provide an opinion for the following: (a) Is it at least as likely as not that rhinitis is related to his service? (b) Is it at least as likely as not that rhinitis was caused OR aggravated by the service-connected tinnitus or service-connected headaches? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the rhinitis, by the service-connected disability. The examiner is asked to provide a detailed rationale for all opinions rendered. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.