Citation Nr: 20008262 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 16-20 919 DATE: January 31, 2020 ORDER Service connection for tinnitus is granted. Service connection for a low back disability is denied. REMANDED Service connection for a heart condition is remanded. Service connection for stroke residuals is remanded. Service connection for diabetes mellitus, type II, is remanded. Service connection for right lower extremity peripheral neuropathy is remanded. Service connection for left lower extremity peripheral neuropathy is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus began in service and has continued ever since. 2. The Veteran’s lumbar degenerative disc disease was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2019). 2. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including tinnitus, an organic disease of the nervous system, as well as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; also see Fountain v. McDonald, 27 Vet. App. 258 (2015). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Tinnitus The Veteran claims to have tinnitus now that he originally noticed during his active service and that has continued ever since. He contends that he had in-service noise exposure and that the ringing in his ears started at this time. The Veteran’s DD Form 214 reflects he had a military occupational specialty (MOS) of light weapons infantryman (“LT WPNS INF”) and also had an “SS RIFLE” qualification. Based upon this nature of service, the Board concedes that the Veteran had in-service noise exposure. The Board has reviewed the Veteran’s service treatment records, which do not show a report of ringing in the ear. The Veteran was afforded a VA examination in February 2013. The examination report shows that the Veteran reported to the examiner that he has had constant tinnitus ever since his active service. This examiner concluded that the Veteran’s tinnitus is associated with his bilateral hearing loss. The only rationale given was that tinnitus is known to be a symptom associated with hearing loss. The examiner apparently discounted the Veteran’s reported history, but did not explain the basis for that conclusion. This reduces the probative value of the medical opinion. In April 2013, the Veteran submitted a statement indicating that he noticed the onset of tinnitus during his active service and that it has continued ever since. In December 2014, a private audiologist confirmed the diagnosis of tinnitus. An attached narrative report also recognizes the Veteran’s in-service noise exposure and his report of the initial onset of ringing in the ears at the time of that noise exposure and continuing since. Based upon these factors, the audiologist found it “at least as likely as not that [the Veteran’s] tinnitus is a result of his acoustic trauma during his military service.” At his June 2019 Board hearing, the Veteran reported that ringing in his ears began in the military and has continued since. The Veteran is competent to testify as to symptoms such as ringing in the ears, because this symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Evidence against the Veteran’s contentions consist of his failure to mention the tinnitus complaint when providing his medical history at the time of his service separation, when he specifically denied ear, nose or throat trouble, and likewise denied any ailment other than those already noted. Nevertheless, it must be acknowledged that the form used to obtain the Veteran’s medical history at service separation does not specifically inquire as to tinnitus, and given the negligible impairment it typically produces, it may not be unreasonable for the Veteran to omit it from the report. Based upon those factors, together with his current reports of tinnitus first occurring in service and existing ever since, as well as the private audiologist’s positive opinion, the Board finds that in this case the preponderance of the evidence cannot be found to be against the Veteran’s claim. Accordingly, with the resolution of reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus are met. 2. Low Back Disability The Veteran contends that he has a current low back disability that is causally connected to his active service. The Veteran has a current diagnosis of degenerative disc disease with facet arthritis involving the lower lumbar and lumbosacral regions as evidenced by the November 2012 VA lumbar spine x-ray. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran’s service treatment records show no back complaints noted at entrance, at separation, or within any clinical records during his active service. Post service private treatment records show the Veteran did not mention any issues with his back until 2004. In August 2004, he was being treated for his knees and while reporting his medical history to the clinician, he reported history of an incident when he was climbing onto a roof at a work when some sort of door came down in the heavy wind and smacked him on the back. He reported that this caused back discomfort, but that it had resolved by the time of this August 2004 treatment. The Board observes that he reported no history of back pain since service. He again reported back pain in September 2004, and in November 2004 an MRI of the thoracic spine yielded normal results. Moderate facet arthritis at L4-L5 with midline bulging of the L4-L5 discs was first noted in the report of a January 2005 MRI. He was next treated for his back pain in March 2011. Initial physical therapy records showed that he reported a history of laying on the floor at work and being unable to get up. Again, he did not report any history of back pain since service. Thus, the first post-service indication of back pain in 2004, and the first indication of lumbar spine arthritis in January 2005 was decades after his December 1972 separation from service, far outside of the applicable presumptive period. In March 2016, the Veteran submitted a copy of a February 2016 Back Conditions Disability Benefits Questionnaire completed by a private chiropractor. This clinician did not give any indication of reviewing the Veteran’s medical history or reviewing his claims file or service treatment records. The clinician actually also did not provide a nexus opinion of any kind. The report notes the current diagnosis of arthritis. The history reported to this clinician included a report of bouncing up and down on a bench seat in the back of a truck in the Army in 1971. The driver was reported to have been driving recklessly and hitting bumps. The Veteran claimed his back was injured at that time and that he had gotten out of the truck and walked back to camp and that every time he lifted anything or used his back, he would experience severe pain. The report also suggested a subsequent back injury at Camp Grayling in 1973. Again, the Veteran’s service treatment records show no indication of any injury to the Veteran’s back or any reports of severe back pain with use. While the Veteran is competent to report experiencing symptoms of back pain since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he did not seek treatment for any back pain until 2004, and at the time he reported no history of symptoms dating back to service. In fact, in every post service clinical record related to the back pain, he reported work-related incidents. Moreover, the records show he reported prior work-related incidents, which had resolved by the time subsequent treatment occurred. The Board, therefore, finds the Veteran’s statements suggesting ongoing back problems since service to lack credibility because these reports are inconsistent with the clinical records over the years since 2004. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, to the extent the Veteran has suggested during the pendency of this claim that he experienced back pain ever since service, while the Veteran asserts that the reported symptoms were manifestations of the currently diagnosed arthritis, he is not competent to make such a medical determination as he has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires the ability to conduct and interpret complicated diagnostic medical testing such as x-rays and MRIs. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In sum, the evidence of record establishes that the Veteran’s lumbar spine arthritis was first diagnosed in January 2005, many years after his separation from active service and far outside the presumptive period for chronic disorders like arthritis. Moreover, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s lumbar spine arthritis and an in-service injury, event, or disease. There is no indication of any complaints of pain or treatment of the back in the service treatment records and the Veteran reported no history of back complaints at the time of his separation. In post-service records, he reported his history of back problems to various clinicians and never reported symptoms having existed due to or since his active service. Rather, he attributed his symptoms to work related incidents and reported the symptoms as resolving after a relatively short period of treatment. Moreover, the first such post-service treatment was more than thirty years after his separate from active service. There is simply no credible evidence to support a factual conclusion that the Veteran’s current back disability initially had its onset in service or is in any other way causally connected to the Veteran’s service. The Board has considered whether a VA examination is required with regard to the claim on appeal under VA’s duty-to-assist provisions. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2019); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Given the lack of an in-service incurrence and the lack of evidence to show a causal connection between the Veteran’s current disability and his active service, the evidence of record is such that the duty to obtain a medical examination is not triggered with regard to this claim. Accordingly, this claim must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s low back disability claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert, 1 Vet. App. at 54. REASONS FOR REMAND Heart Disorder – Examination The Veteran claims service connection is warranted for a heart disorder. He contends his current disorder is directly associated with his active service. Alternatively, he has suggested his heart disorder is related to in-service herbicide exposure he claims occurred during service in Korea and at Fort Lewis. With regard to the direct service connection contention, the Board recognizes that the Veteran reported a history of heart palpitations since childhood at the time of his January 1971 entrance examination. The Veteran then sought treatment in August 1971, at which time he indicated his physician had recommended an EKG every two years to monitor the palpitations that had existed since childhood. At the time he reported experiencing shortness of breath with exertion. A cardiology record dated in August 1971 shows an ECG was abnormal with abnormal tracing and multiple premature beats, which were indicated to be “probably junctional.” The Veteran returned to duty. The Veteran’s November 1972 separation examination shows “Premature Atrial Contractions with sinus arrythmia.” The Veteran was afforded a VA examination in October 2012. This examiner notes that the Veteran currently is diagnosed with premature atrial contractions with sinus arrhythmia and tachycardia, which were diagnosed in 1971 and 1973, respectively. The examiner also noted that the tachycardia is currently constant as episodes were documented by checking his pulse. The examiner was then asked by the RO to provide an opinion as to whether the Veteran’s pre-service heart condition was at least as likely as not aggravated by the Veteran’s active service. The examiner went on to check the box to indicate that the claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner suggested that the Veteran’s premature atrial contractions were noted at entrance and that he was referred to a cardiologist at that time. In fact, the Veteran entered service in May 1971 and separated from service in December 1972. He reported only heart palpitations at the time of his January 1971 entrance examination. It was not until August 1971 that he reported experiencing shortness of breath and received care with cardiology and an abnormal ECG was noted. It was also noted on the separation examination, but not the entrance examination, that the Veteran had a diagnosis of premature atrial contractions with sinus arrythmia. Thus, it is not clear if the examiner had an accurate understanding of the Veteran’s history. The examiner also noted the tachycardia as present since at least 1973 and also as present on the day of the examination. There was no opinion provided as to the tachycardia. In view of the shortcomings noted above, the Board finds a remand of this matter is needed in order to afford the Veteran an updated examination and additional opinion. All Claims – Herbicide Exposure Development The Veteran has also argued that his heart disorder, diabetes, neuropathy and stroke were all caused by toxins or herbicides he was exposed to during his active service. He has suggested exposure while at the DMZ in Korea and while at Fort Lewis. VA has indeed conceded the Veteran’s presence at the DMZ in Korea, but his records show he arrived November 2, 1971, which is after the presumptive period for herbicide exposure. 38 C.F.R. § 3.307(a)(6)(iv) (2019). The Veteran’s records, however, also show that he was stationed at Fort Lewis from June 1971 to October 1971. He contends he was exposed to contaminants at that time. This contention was made at the Board hearing, after the RO’s last readjudication of these claims. When a veteran provides the approximate dates of the asserted exposure, as well as the location and nature of such exposure, this information is to be furnished to the Compensation Service via e-mail at VAVBAWAS/CO/211/AGENTORANGE and request a review of DoD’s inventory of herbicide operations to determine whether herbicides were used as claimed. If the Compensation Service is unable to confirm that the herbicides were so used, then the information is to be submitted to the Joint Services Records Research Center (JSRRC) to determine whether such exposure can be verified. If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. Thus, on remand, the additional development should be undertaken. Furthermore, with regard to this Fort Lewis contention, additional development should be conducted for environmental hazards other than Agent Orange. If herbicide/chemical exposure is established by the evidence, VA examinations for these remaining claims should be conducted if then warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart disorder present at any time during the pendency of this claim, which was filed in February 2012. For any heart disorder shown at any time during this claim period, the examiner should provide an opinion as to whether it clearly and unmistakably (undebatable) preexisted the Veteran’s service. (In addressing this question, an interpretation of what the August 1969 record from Butterworth Hospital shows would be useful.) If the examiner finds it did clearly and unmistakably preexist service, the examiner should indicate whether it clearly and unmistakably was not aggravated by service. If the examiner finds that it did not clearly and unmistakably preexist service, the examiner should opine whether it is at least as likely as not related to an in-service injury or disease, including the in-service notations of shortness of breath with exertion and the abnormal ECG findings. The examination report should include reasons for any opinion expressed and should include consideration of the Veteran’s lay statements related to his history of symptoms. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 2. Attempt to verify the Veteran’s alleged chemical or herbicide exposure while stationed at Fort Lewis. All requests and responses received should be associated with the claims file. 3. If herbicide/chemical exposure is established, VA examinations for the other claims should be conducted if then warranted. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.