Citation Nr: 20021269 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 15-33 179 DATE: March 25, 2020 ORDER Entitlement to service connection for peripheral vestibular disorder is denied. Entitlement to service connection for arthritis of the back is denied. Entitlement to service connection for headaches, cephalgia, including as secondary to bilateral hearing loss or a stomach condition, is denied. REMANDED Entitlement to service connection for arthritis of the knees is remanded. Entitlement to service connection for arthritis of the ankles is remanded. Entitlement to service connection for foot pain is remanded. Entitlement to service connection for leg pain is remanded. Entitlement to service connection for a stomach condition is remanded. Entitlement to service connection for residuals of stroke is remanded. Entitlement to service connection for macular drusen, dry eye syndrome, and cataracts, including as secondary to headaches, cephalgia, is remanded. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had peripheral vestibular disorder at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that arthritis of the back began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that headaches, cephalgia began during active service, or is otherwise related to an in-service injury or disease or is secondary to bilateral hearing loss or a stomach condition. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral vestibular disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for arthritis of the back are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a). 3. The criteria for service connection for headaches, cephalgia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1980 to March 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA). The Veteran filed a notice of disagreement in June 2014 and a statement of the case was issued in August 2015. The Veteran perfected his appeal by filing a VA Form-9 in September 2015 and elected to appear before the Board for an optional hearing. In January 2019, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. The hearing transcript has been associated with the claims file. The Board notes that the Veteran raised the issue of entitlement to service connection for asthma at the Board hearing. However, the Veteran has not filed a claim for service connection for asthma and the issue is therefore not before the Board. If the Veteran chooses to file such a claim, he remains free to do so. At the January 2019 Board hearing, the Veteran testified that he is unable to work due to his service-connected hearing loss. Accordingly, the Board finds that the issue of entitlement to a TDIU has been raised by the record and has therefore been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for peripheral vestibular disorder The Veteran contends that he suffers from peripheral vestibular disorder due to his time in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of peripheral vestibular disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Despite consistent treatment from June 2010 to April 2019, VA treatment records do not contain a diagnosis of peripheral vestibular disorder. While the Veteran believes he has a current diagnosis of peripheral vestibular disorder, he is not competent to provide a diagnosis in this case. During the hearing, he attributed balance issues to leg pain, seizures, and vision problems. He also stated that he has been proscribed a cane due to his balance problems due to his ankle. As noted above, while the Veteran has received ongoing medical treatment, to include for these issues, he has not been diagnosed with peripheral vestibular disorder. Given the different conditions that could be causing the Veteran’s balance problems, the diagnosis of peripheral vestibular disorder is medically complex, as it requires specialized medical education to identify the etiology of the Veteran’s balance problems. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 2. Entitlement to service connection for arthritis of the back The Veteran contends that he suffers from arthritis of the back due to the jumping and repelling out of helicopters and off of a cliff while in service. Specifically, the Veteran contends that he had one jump in service where he had pain in his back and has continued to have pain in his back since that time. The Veteran’s service treatment records show that in February 1981 he complained of low back pain for one year, with no trauma. In his January 1983 Report of Medical History, the Veteran reported low back pain. VA treatment records from February 2011 show that the Veteran denied back pain. Private treatment records from February 2013 show that the Veteran complained of back pain. He was diagnosed with lower back pain and lumbar radiculopathy. The Veteran was provided with a VA back conditions examination in November 2013 where he was diagnosed with mild degenerative joint disease (DJD) with bilateral radiculopathy. The Veteran reported that a fall at work in October 2012 triggered exacerbation of his chronic low back pain. The VA examiner opined that the Veteran’s back condition was less likely than not due to his service. The examiner provided the rationale that until the Veteran sustained a fall at work in October 2012, he made no complaints of chronic back pain. VA treatment records from November 2012 are when reports of low back pain begin. The examiner added that in the absence of intervening documentation of chronic lower back pain since the time in service, his current back condition is less likely than not due to his in-service back condition. The Veteran submitted a private statement from a physician in February 2019. The private physician noted that the Veteran was seen for low back pain while on active duty. The Veteran’s significant facet arthropathy was identified from L3-S1. The private physician concluded that it is as likely as not that the Veteran’s low back issues began in service and are therefore service connected. As an initial matter, the Board notes that the Veteran was not diagnosed with arthritis while on active duty and the record does not indicate that the Veteran had arthritis within one year of his separation from service. The record also does not indicate that arthritis of the back manifested to a compensable degree within one year from separation from service. Accordingly, service connection may not be granted on a presumptive basis. 38 C.F.R. § 3.309(a). The Board concludes that, while the Veteran has a current diagnosis of mild DJD, the preponderance of the evidence weighs against finding that the Veteran’s low back disability began during service or is otherwise related to an in-service injury, event, or disease. The Board finds the November 2013 VA examiner’s opinion to be more probative than the February 2019 private opinion in this case because it is supported by an adequate rationale. The February 2019 opinion is afforded low probative value because it is not supported by any rationale. The Board acknowledges the Veteran’s contention that he has had back pain since his time in service. However, the Board finds these reports not credible. As noted above, the Veteran denied back pain in February 2011 VA treatment records. The evidence of record also does not show any reports for back pain until after the Veteran’s post-service work injury in October 2012. Additionally, the November 2013 VA examiner noted the Veteran’s reports of ongoing symptoms and still concluded that the Veteran’s current back disability was not the result of his service. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for arthritis of the back. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to service connection for headaches, cephalgia, including as secondary to bilateral hearing loss or a stomach condition The Veteran contends that he suffers from headaches as a result of chemical exposure he had going through gas chambers while in service. He claims that he was required to go through a gas chamber on several occasions, and many people vomited as a result. In the alternative, the Veteran contends that his headaches are secondary to his hearing loss or stomach condition. The Veteran’s service treatment records show that he was found lying unresponsive in the hallway of the barracks in July 1981. He could not recall what happened to him. Symptoms at the time were headaches and sharp pains to the chest and upper abdomen. An impression of syncope was noted at the time. The next day, the Veteran reported a headache and feverish feeling with abdominal pain and nausea. An impression of fever was noted by the examiner. In January 1982, the Veteran reported feeling ill for several days with a headache and congestion. On his January 1983 Report of Medical History, the Veteran reported headaches sometimes. VA treatment records from February 2011 show that the Veteran denied headaches. VA treatment records from January 2014 show that the Veteran complained of headaches on the right side of head for the past two weeks. He reported that he has been having daily headaches since April 2013. The Veteran was diagnosed with headaches, probable muscle tension. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. With respect to the third factor, the types of evidence that “indicate” that a current disorder “may be associated” with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. Here, there is no indication of a link between his current diagnosis and service aside from the Veteran’s unsupported statements. There is also no indication of a link between the Veteran’s headaches and his hearing loss or his stomach condition. Indeed, as noted above, the Veteran and his representative have not provided any argument related to his claim for headaches. As such, the Veteran’s claims of entitlement to service connection for headaches on a direct and secondary basis do not meet the low threshold requirements of McLendon, and a VA examination is not necessary. The Board also notes that there is no credible evidence of continuity of symptomatology since the Veteran’s time in service. As noted above, the Veteran denied headaches in February 2011 VA treatment records. Additionally, VA treatment records show that the Veteran reported that his headaches began in April 2013. The Board finds that entitlement to service connection is not warranted for the Veteran’s headaches. The Board acknowledges the Veteran’s belief that his disability is related to his service or is secondary to his hearing loss or stomach condition. However, the Veteran is not competent to provide nexus opinion in this case. The issue is medically complex, as it requires knowledge and interpretation of pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, the Board notes that the evidence of record does not contain any competent and credible evidence suggesting a link between the Veteran’s headaches and his active duty service, hearing loss, or stomach condition. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for headaches, cephalgia, including as secondary to bilateral hearing loss or a stomach condition. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for arthritis of the knees The Veteran contends that he suffers from arthritis of the knees due to the jumping he did while in service. The Veteran contends that his knee pain started in service and has progressively gotten worse since then. The Veteran was provided with a VA knee and lower leg conditions examination in February 2015 where the VA examiner opined that the Veteran’s knee condition was less likely than not due to his service because there is no documentation of any care after service for the knees. The Board notes that the evidence of record shows that the Veteran sought treatment at a private facility for joint pain localized in the knee in July 2013. Additionally, VA treatment records show treatment for bilateral knee pain in February 2014. Accordingly, the Board finds that the February 2015 VA examiner did not use the correct legal standard in his supporting rationale to his negative nexus opinion. Additionally, the Board notes that as the February 2015 VA examiner partially based his opinion on the lack of treatment for a knee condition since separation from service, an addendum opinion considering the Veteran’s lay statements regarding the continuity of symptomatology is required prior to adjudication of this issue. 2. Entitlement to service connection for arthritis of the ankles; foot pain; leg pain; a stomach condition; residuals of stroke; and macular drusen, dry eye syndrome, and cataracts, including as secondary to headaches, cephalgia The Veteran contends that he suffers from arthritis of the ankles, foot pain, and leg pain due to the jumping he did while in service. The Veteran contends that he rolled his ankles a few times during the many jumps in service and the pain began in service and has continued since then. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for arthritis of the ankles, foot pain, or leg pain because no VA examiner has opined whether his current ankle, foot, or leg conditions are related to his service. The Veteran contends that he suffers from a stomach condition that is related to the multiple complaints of abdominal pain, to include bloody vomitus he had while in service. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a stomach condition because no VA examiner has opined whether his stomach condition is related to his complaints in service. The Veteran contends that he suffers from residuals of a stroke that he had while in service. The Veteran’s service treatment records show that he was found lying in the barracks hallway unresponsive to painful and verbal stimuli in July 1981. The Board cannot make a fully informed decision on the issue of entitlement to service connection for residuals of a stroke because no VA examiner has opined whether his current residuals of a stroke is related to this incident in service. The Veteran contends that he suffers from macular drusen, dry eye syndrome, and cataracts as a result of chemical exposure he had going through gas chambers while in service. In the alternative, the Veteran claims that his eye condition is secondary to his headaches. The Veteran’s service treatment records show that he was treated for blurring vision in February 1981 and issued glasses in October 1981. The Board cannot make a fully informed decision on the issue of entitlement to service connection for an eye condition because no VA examiner has opined whether his current eye condition is related to his complaints of blurred vision in service. 3. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss The Veteran contends that his bilateral hearing loss is more severe than what is represented by the current rating. At the January 2019 Board hearing, the Veteran asserted that his hearing loss has worsened since his last VA examination in November 2013. As the Veteran was last provided a VA hearing loss examination in November 2013, the Board finds that the Veteran should have an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss. 4. Entitlement to a TDIU As the issue of entitlement to a TDIU is inextricably intertwined with the service connection and increased rating claims on appeal, it must also be remanded. The matters are REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s knee condition had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event. If the reviewing health care provider finds that physical examination of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. The examiner should accept the Veteran’s account of medical history as true unless there is a medical reason to doubt its veracity. In such a case, the examiner should explain why the Veteran’s recollection is inconsistent with principles of medical science and/or the evidence in this case. 2. Schedule the Veteran for an examination by an appropriate health care provider to determine the nature and etiology of any ankle condition. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s ankle condition had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. The examiner should accept the Veteran’s account of medical history as true unless there is a medical reason to doubt its veracity. In such a case, the examiner should explain why the Veteran’s recollection is inconsistent with principles of medical science and/or the evidence in this case. 3. Schedule the Veteran for an examination by an appropriate health care provider to determine the nature and etiology of any foot condition. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s foot condition had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. The examiner should accept the Veteran’s account of medical history as true unless there is a medical reason to doubt its veracity. In such a case, the examiner should explain why the Veteran’s recollection is inconsistent with principles of medical science and/or the evidence in this case. 4. Schedule the Veteran for an examination by an appropriate health care provider to determine the nature and etiology of any leg condition. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s leg condition had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. The examiner should accept the Veteran’s account of medical history as true unless there is a medical reason to doubt its veracity. In such a case, the examiner should explain why the Veteran’s recollection is inconsistent with principles of medical science and/or the evidence in this case. 5. Schedule the Veteran for an examination by an appropriate health care provider to determine the nature and etiology of any stomach condition. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s stomach condition had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. The examiner should accept the Veteran’s account of medical history as true unless there is a medical reason to doubt its veracity. In such a case, the examiner should explain why the Veteran’s recollection is inconsistent with principles of medical science and/or the evidence in this case. 6. Schedule the Veteran for an examination by an appropriate health care provider to determine the nature and etiology of residuals of a stroke. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s residuals of a stroke had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. The examiner should accept the Veteran’s account of medical history as true unless there is a medical reason to doubt its veracity. In such a case, the examiner should explain why the Veteran’s recollection is inconsistent with principles of medical science and/or the evidence in this case. 7. Schedule the Veteran for an examination by an appropriate health care provider to determine the nature and etiology of any eye condition. The examiner must provide an opinion for the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s eye condition had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event? A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. The examiner should accept the Veteran’s account of medical history as true unless there is a medical reason to doubt its veracity. In such a case, the examiner should explain why the Veteran’s recollection is inconsistent with principles of medical science and/or the evidence in this case. 8. Schedule the Veteran for an appropriate VA examination to determine the current severity of his bilateral hearing loss. His claims file must be made available to the examiner for review in connection with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings in detail. Michael Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.