Citation Nr: 20028089 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 18-21 050 DATE: April 22, 2020 ORDER Entitlement to service connection for a back disability, manifested by back pain is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral knee disability, manifested by bilateral knee pain is denied. REMANDED Entitlement to service connection for bilateral ankle condition is remanded. Entitlement to service connection for eye disability, to include bilateral nonproliferative diabetic retinopathy with macular edema is remanded. FINDINGS OF FACT 1. The Veteran’s back disability, manifested by back pain is not attributable to service. 2. The Veteran’s tinnitus is attributable to service. 3. The Veteran does not have a left ear and/or right hear hearing loss disability for VA purposes. 4. The Veteran’s bilateral knee disability, manifested by bilateral knee pain is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability, manifested by back pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). 4. The criteria for service connection for bilateral knee disability, manifested by bilateral knee pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1982 to September 1986 and on active duty for training (ACDUTRA) from April 1981 to August 1981. The Veteran testified before the undersigned at a February 2020 Board hearing. A transcript is of record. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Back disability, manifested by back pain The Veteran filed a December 2016 claim for service connection for low back pain. See December 2016 VA Form 21-526EZ. At his February 2020 Board hearing, the Veteran testified during service he participated in parachute jumps and repelling out of helicopters and experienced wear and tear on the body from being an infantryman for six years. See February 2020 Board hearing Tr. at 2. Further, the Veteran testified that cold weather operations and rain have led to advanced degradation of his joints, such as his back over a period of time. Id. A June 1981 service treatment record (STR) health record revealed the Veteran had complaints of low back pain. A June 1981 STR triage note of acute medical care indicated the Veteran was placed on profile for 14 days for low back pain. A June 1981 STR triage of acute medical care noted the Veteran was seen for follow up for back pain and was discharged with no follow up required and activity level was full duty. A July 1981 STR triage note of acute medical care noted the Veteran was seen for complaints of back pain and was assessed with muscle spasms. In an August 1986 report of medical history, the Veteran reported that he did not now have, nor has he ever had broken bones; bone, joint, or other deformity; and recurrent back pain. In his August 1986 report of medical history, the Veteran reported being in good health. The Veteran’s August 1986 report of medical examination indicated the Veteran had normal spine and other musculoskeletal findings. The case turns on whether there is an etiological relationship between the Veteran’s back pain and service. In this regard, the March 2017 VA examiner opined that the Veteran’s low back pain condition was less likely than not incurred in or caused by in-service injury, event, or illness. The examiner explained that while STRs indicate low back pain in 1981, records were quiet of a back complaint through the end of his enlistment, on separation exam and until 2015 when x-rays were obtained and showed no degenerative changes. The examiner stated there is no nexus between his active duty back pain and that of today and records do not support chronicity The Board has considered the Veteran’s statements, to include his assertions that his back pain and symptoms began in service and/or are otherwise related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., difficulty breathing; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include opinions rendered by trained medical professionals based with supportive rationale. While the Board has considered the Veteran’s subjective complaints, it gives greater weight to the March 2017 VA examiner’s opinion and report. Therefore, the preponderance of the evidence is against the claim for service connection for back disability, manifested by back pain; thus, the benefit of the doubt rule does not apply. Accordingly, service connection for back disability, manifested by back pain must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 54-56. 2. Tinnitus The Veteran filed a December 2016 claim for service connection for tinnitus. See December 2016 VA Form 21-526EZ. He contends his tinnitus began in service. The Veteran testified that in service he was firing heavy weapons in service and experienced ringing in his ears in service. See February 2020 Board hearing Tr. at 7. He further stated that he has experienced ringing in his ears ever since shortly after service. See March 2017 VA examination report. The evidence indicates that the Veteran has tinnitus. The Veteran’s lay assertions describing tinnitus symptoms - noted in written statements of record - are of probative value inasmuch as he, as a lay person, is competent to report observable symptomology such as a ringing sound in his ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the March 2017 VA examiner found tinnitus was “less likely than not” due to service; however, the Board finds the preponderance of the evidence is in relative equipoise. Thus, affording the Veteran the benefit of reasonable doubt, the grant of service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Bilateral hearing loss The Veteran filed a December 2016 claim for service connection for hearing. See December 2016 VA Form 21-526EZ. The Veteran testified that in service he was firing heavy weapons in service and STRs demonstrate a shift in hearing in service. See February 2020 Board hearing Tr. at 7. The question for the Board is whether the Veteran has a bilateral hearing loss disability that is etiologically related to, or aggravated by, an in-service disease or injury. An essential element of a claim for service connection is evidence of a current disability. The Board finds that the competent, credible, and probative evidence is against a finding that the Veteran has a bilateral hearing loss disability for VA purposes. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Veteran was afforded a March 2017 VA audiological examination and testing revealed: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 10 5 10 10 Left 10 10 5 5 15 The Veteran’s speech discrimination testing revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. Based on the foregoing, the Board finds the evidence shows that the Veteran does not have a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, including exposure to loud noises and difficulty hearing. See March 2017 VA examination report and February 2020 Board hearing Tr. To this extent, the Board finds that the Veteran is competent to report that he has difficulty hearing; however, he has not been shown to be competent to provide a diagnosis of a hearing loss disability for VA purposes, as that is based on specific audiometric findings. The Board finds that the clinical evidence of record is more probative than the lay statements. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of hearing loss, hearing acuity thresholds, and hearing loss disability for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In order for the Veteran’s hearing impairment to be considered a disability for VA purposes, it must meet the criteria provided under current regulations. While the Board sympathizes with the Veteran’s current hearing symptoms; it is unable to provide service connection as the Veteran’s auditory threshold is not 40 decibels or greater in any of the listed frequencies, at least 26 decibels or greater in at least three of the listed frequencies, nor does he have speech recognition scores using the Maryland CNC Test that are less than 94 percent. 38 C.F.R. § 3.385. As explained above, the Veteran must have a disability for service connection to be granted. Based on the given facts, the preponderance of the evidence is against a finding that the Veteran currently has a left ear and/or right ear hearing disability for VA purposes. Thus, service connection is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 4. Bilateral knee disability, manifested by bilateral knee pain The Veteran filed a December 2016 claim for service connection for bilateral pain. See December 2016 VA Form 21-526EZ. At his February 2020 Board hearing, the Veteran testified during service he participated in parachute jumps and repelling out of helicopters and experienced wear and tear on the body from being an infantryman for six years. See February 2020 Board hearing Tr. at 2. Further, the Veteran testified that cold weather operations and rain have led to advanced degradation of his joints, such as his knees over a period of time. Id. A July 1981 STR health record indicated the Veteran was seen for complaints of left knee pain the assessment was complaints of left knee pain and normal exam. In an August 1986 report of medical history, the Veteran reported that he did not now have, nor has he ever had broken bones; bone, joint, or other deformity; “trick” or locked knees; and arthritis, rheumatism, or bursitis. In his August 1986 report of medical history, the Veteran reported being in good health. The Veteran’s August 1986 report of medical examination indicated the Veteran had normal lower extremities. The case turns on whether there is an etiological relationship between the Veteran’s bilateral knee pain and service. In this regard, the March 2017 VA examiner opined that the Veteran’s bilateral knee pain is less likely than incurred in or caused by in-service injury, event, or illness. The examiner explained that while STRs indicate left knee pain, it was in 1981 and it occurred after hitting his knee on an object (not from running or twisting. The examiner that that his right knee pain is actually pain through his knee from his back through the right knee and not a distinct orthopedic knee condition. The examiner stated that there were no further references to his knees through the end of his enlistment or on his separation physical. The examiner indicated that there were no references to knee pain until 2015 when x-rays were obtained, and they were essentially normal. The examiner determined there is no nexus between his current knee pain and his knee pain on active duty as the record does not support an orthopedic knee condition while on active duty or a chronic condition since. The Board has considered the Veteran’s statements, to include his assertions that his bilateral knee pain and symptoms began in service and/or are otherwise related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., difficulty breathing; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include opinions rendered by trained medical professionals based with supportive rationale. While the Board has considered the Veteran’s subjective complaints, it gives greater weight to the March 2017 VA examiner’s opinion and report. Therefore, the preponderance of the evidence is against the claim for service connection for bilateral knee disability, manifested by bilateral knee pain; thus, the benefit of the doubt rule does not apply. Accordingly, service connection for bilateral knee disability, manifested by bilateral knee pain must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 54-56. REASONS FOR REMAND 1. Bilateral ankle condition The Veteran has reported that he has a bilateral ankle condition due to service. At his February 2020 Board hearing, the Veteran testified during service he participated in parachute jumps and repelling out of helicopters and experienced wear and tear on the body from being an infantryman for six years. See February 2020 Board hearing Tr. at 2. Further, the Veteran testified that cold weather operations and rain have led to advanced degradation of his joints, such as his ankles over a period of time. Id. To date, it does not appear the Veteran has been afforded a VA ankle examination and should be scheduled on remand. 2. Eye disability, to include bilateral nonproliferative diabetic retinopathy with macular edema. The Veteran has currently diagnosed severe nonproliferative diabetic retinopathy with macular edema, bilateral with a date of diagnosis in January 2017. See March 2017 VA examination report. An August 1983 STR health record noted the Veteran had complaints of blurred vision in right eye and feeling like his eye was “twitching.” A September 1983 STR health record noted the Veteran was seen for complaints of eye problems described as eyes getting blurry when intending to fix eyes on subject and problems reading from distance. The March 2017 VA examiner opined that the Veteran does not have a diagnosis of vision loss that is at least as likely as not incurred in service and explained that the Veteran has normal visual acuity with current prescription; however, the examiner did not provide an etiological opinion for the Veteran’s diagnosed eye disability and remand for addendum is needed. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records and associate them with the claims file. 2. After records development is completed, schedule the Veteran for a VA examination to determine (1) whether the Veteran has any current left and/or right ankle disability, to include pain and (2) whether it is at least as likely as not (50 percent probability or greater) that any current disability of the left and/or right ankle, to include pain had onset during service or is otherwise related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider the Veteran’s February 2020 Board hearing testimony that during service he participated in parachute jumps and repelling out of helicopters and experienced wear and tear on the body from being an infantryman for six years and that cold weather operations and rain have led to advanced degradation of his joints, such as his ankles over a period of time. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings. 3. Then, the claims file should be sent to an appropriate clinician to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the currently diagnosed severe nonproliferative diabetic retinopathy with macular edema, bilateral had onset during service or is otherwise related to an in-service injury, event, or disease. In offering the opinion, the clinician is asked to consider the March 2017 VA examination report; August 1983 STR health record that noted the Veteran had complaints of blurred vision in right eye and feeling like his eye was “twitching”; and September 1983 STR health record that noted the Veteran was seen for complaints of eye problems described as eyes getting blurry when intending to fix eyes on subject and problems reading from distance. The need for an examination is left to the discretion of the clinician. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 4. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representative. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.