Citation Nr: 20028815 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 17-60 338 DATE: April 24, 2020 ORDER Service connection for tinnitus is granted. Service connection for degenerative joint disease (DJD) of the lumbar spine is granted. Service connection for bilateral hearing loss is denied. Service connection for hypertension is denied. REMANDED Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a bilateral shoulder disorder is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his currently diagnosed tinnitus had its onset during active duty service. 2. Resolving all doubt in favor of the Veteran, his currently diagnosed DJD of the lumbar spine is related to his military service. 3. Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of discharge from active duty. 4. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of discharge from active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for DJD of the lumbar spine have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to February 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, the undersigned held the record open for 60 days for the receipt of additional evidence, which was received in January 2020 and March 2020. 38 U.S.C. § 7105(e)(1). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system and 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. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system. Similarly, tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury suffered while he was in military service. See Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for tinnitus. The Veteran contends that he has tinnitus that had its onset during his military service due to in-service noise exposure and has been recurrent since such time. Specifically, he alleges he was exposed to hazardous noise as a wheeled vehicle repairman and while performing parachute jumps. Therefore, the Veteran claims that service connection for tinnitus is warranted. The Board finds the Veteran’s statements regarding his in-service noise exposure to be competent and credible as such are consistent with the circumstances of his service. The Board further finds that the Veteran has a current diagnosis of tinnitus as such disorder can be identified through lay observations alone and he has offered competent and credible descriptions of experiencing tinnitus throughout the appeal. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, such diagnosis was confirmed at a December 2016 VA examination. Thus, the remaining inquiry is whether the Veteran’s tinnitus had its onset in, or is otherwise related to, his military service, to include his noise exposure therein. During the Veteran’s December 2016 VA examination, he reported that he heard a seashore noise in his left ear like he was at the beach and it was constant, and his ear felt like he needed to pop it all the time. He also stated that it had been going on for the last couple of years. The examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure as there was no documented permanent threshold shift in hearing in either ear during military service. He further noted that the Veteran had no documented complaints of tinnitus during military service, was not in combat, and reported that the onset of such condition was approximately 2 to 3 years ago, i.e., several years after separation for military service. While the aforementioned VA examiner noted that the Veteran reported his tinnitus began after service, at the January 2020 Board hearing, he testified that he experienced ringing in the ears during service and such had been present ever since. Moreover, in support of such assertion, he submitted employment audiological records reflecting a complaint of noises or ringing in the ears as early as February 1982. Additionally, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination “medical in nature,” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles, supra. Moreover, when a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. Therefore, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed tinnitus had its onset during his active duty service. Consequently, service connection for tinnitus is warranted. 2. Entitlement to service connection for a back disorder. The Veteran contends his currently diagnosed back disorder (see December 2016 VA examination) is related to his active service, to specifically include a fall he had during training and/or his in-service parachute jumps. In this regard, the Veteran’s service treatment records (STRs) reveal that, in October 1974, he complained of a fractured tail bone and an impression of an old fracture trauma was noted. In February 1975, the Veteran still complained of pain in the coccygeal area and the clinician noted that he had problems intermittently since landing on his buttocks in jump school 2 years ago. In December 2016, the Veteran was afforded a VA examination and, at such time, the examiner noted a diagnosis of DJD of the lumbar spine. However, he opined that the Veteran’s back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, the examiner reasoned that the Veteran had a single episode of trauma to the coccyx in 1975, no back problems noted on his January 1976 separation examination, and the absence of documentation or recurring of persistent back problems from 1975 until his back surgery in 2009. Thus, he concluded that it was less likely than not that the Veteran’s current DJD of the lumbar spine was the result of the trauma to the coccyx in-service. However, in March 2020, a private opinion was received from Dr. M.F., who had been treating the Veteran since 2001. He noted that the Veteran’s diagnoses included, among other things, DJD and low back pain and, after a review of the pertinent records, he opined that it was highly likely that his condition was a direct result of his military service as a paratrooper. Dr. M.F. derived his opinion from the Veteran’s length of time in the military and conditions presented after discharge. He also reasoned these types of conditions were more frequently correlated with the type of physical strain and tension associated with the physical demands of a military paratrooper. After a review of the above, the Board finds the evidence of record is in equipoise as to whether the Veteran’s back disorder is related to his military service. The individuals who offered the foregoing opinions are competent medical professionals who considered the relevant facts and accepted medical principles and provided rationales for the opinions. Consequently, their opinions are entitled to equal probative weight. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that his currently diagnosed DJD of the lumbar spine is related to his military service. Thus, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his currently diagnosed bilateral hearing loss is related to his aforementioned acknowledged in-service noise exposure. As the December 2016 VA examination reveals a diagnosis of bilateral hearing loss for VA purposes, the remaining inquiry is whether the Veteran’s bilateral hearing loss is related to his military service, to include such in-service noise exposure. In this regard, the Veteran’s STRs are negative for any complaints, treatment, or diagnoses referable to bilateral hearing loss. However, for the purpose of establishing service connection, it is not required that a hearing loss disability be demonstrated in service. See Hensley, supra. Nonetheless, upon review of the evidence, the Board finds that the preponderance of the evidence is against such claim. Specifically, during the Veteran’s December 2016 audiological VA examination, he reported that he had problems with hearing for at least 15 years or so. The examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. In support thereof, he explained that there was no permanent threshold shift in hearing in either ear between his February 1973 entrance examination and his January 1976 separation examination. In this regard, while the Veteran testified at the January 2020 Board hearing that he did not remember taking an audiological test during his separation examination and his representative argued that if he had a separation examination, such was inadequate as his hearing loss did not get better during service, the Veteran’s STRs reveal that the Veteran underwent an audiological examination at the time of his separation from service and there is no indication such is inadequate. Specifically, the examining medical professional did not indicate that there were any testing abnormalities or the equipment was not working. Furthermore, other than a generalized statement that such was inadequate as it reflected that the Veteran’s hearing improved since his entrance examination, the Veteran’s representative did not describe how the testing mechanism was inadequate. Thus, such argument is without merit. Moreover, while Dr. M.F. noted that the Veteran’s diagnoses included hearing loss that was a direct result of his military service in the aforementioned March 2020 opinion, his rationale for such opinion was in relation to the Veteran’s physical disorders as he reasoned that such conditions were more than frequently correlated with the type of physical strain and tension associated with the physical demands of a military paratrooper. Thus, such opinion is afforded no probative weight with regard to the Veteran’s bilateral hearing loss. Conversely, the Board affords great probative weight to the December 2016 VA examiner’s opinion as such considered all of the pertinent evidence of record and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Veteran’s lay statements asserting that his bilateral hearing loss is related to his military service. However, the Board finds that the question regarding the potential relationship between such disorder and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, while the Veteran is competent to describe his in-service experiences and current symptomatology, he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In the instant case, the etiology of bilateral hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as the Veteran does not have the appropriate medical expertise to offer an opinion as to the etiology of his bilateral hearing loss, his lay assertions in such regard are afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that bilateral hearing loss manifested to a compensable degree within one year of the Veteran’s separation from service. In this regard, his bilateral hearing acuity was normal upon his separation examination. Additionally, there are no documented complaints of hearing loss for many decades after service. In fact, employment audiological records reflect the first indication of right ear hearing loss in November 1981, with left ear hearing loss noted two years later, and the Veteran denied experiencing hearing trouble in February 1982. Furthermore, his bilateral hearing loss does not meet the requirements for a compensable rating as recently as the December 2016 VA examination. Consequently, presumptive service connection for bilateral hearing loss is not warranted. Therefore, the Board finds that the Veteran’s bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of discharge from active duty. Consequently, service connection for bilateral hearing loss is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 4. Entitlement to service connection for hypertension. The Veteran is seeking service connection for hypertension. However, his STRs are negative for any complaints, treatment, or diagnoses referable to such disorder. Specifically, his January 1976 separation examination reflected that all systems were normal upon clinical evaluation and his blood pressure was 140/80. Moreover, while the Veteran’s post-service treatment records suggest that he has a current diagnosis pertaining to hypertension, such do not show, or suggest, that such disorder is related to his military service, or demonstrate that hypertension manifested to a compensable degree within a year of his separation, or was chronic and continuous since such time. Furthermore, the Veteran has not provided any other information as to how his hypertension is related to his military service. Moreover, similar to his claim for service connection for bilateral hearing loss, the Veteran’s diagnoses included hypertension that was a direct result of his military service in the aforementioned March 2020 opinion, his rationale for such opinion was in relation to the Veteran’s physical disorders as he reasoned that such conditions were more than frequently correlated with the type of physical strain and tension associated with the physical demands of a military paratrooper. Thus, such opinion is afforded no probative weight with regard to the Veteran’s hypertension. The Board notes that an examination and/or opinion have not been obtained in regard to the Veteran’s claim for service connection for hypertension. However, VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Consequently, such is not necessary in the instant case. Therefore, the Board finds that the Veteran’s hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of discharge from active duty. Therefore, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for hypertension. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 5. Entitlement to service connection for left ankle disorder. 6. Entitlement to service connection for bilateral knee disorder. 7. Entitlement to service connection for a bilateral shoulder disorder. The Veteran contends that he has bilateral knee, bilateral shoulder, and left ankle disorders that are directly related his military service, to specifically include his in-service parachuting duties, to include the fitting of the harness and jumps. In this regard, the Veteran’s STRs reveal that he injured his left foot in August 1975 and had pain in his lateral dorsum of such foot for 6 days. An impression of rule out stress fracture was noted. With regard to his left ankle disorder, the Veteran was afforded a VA examination in December 2016, at which time the examiner opined that such disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he reasoned that there was only a single episode of foot pain in service, the Veteran’s separation examination was silent for a left ankle disorder, and there was an absence of any documentation of recurring or persistent left ankle pain from 1975 until arthroscopic surgery in 2012. Thus, he concluded that it was less likely than not that the Veteran’s diagnosed chronic musculo-ligamentous strain of the left ankle was related to the in-service incident. However, the examiner did not consider whether such disorder was related to his in-service parachute jumps or address the Veteran’s lay statements of having continued left ankle pain since his military service. Thus, the Board finds than an addendum opinion is needed to address such matters. With regard to the Veteran’s claims for service connection for a bilateral knee and bilateral shoulder, he has not been afforded VA examinations. However, given his acknowledged in-service parachute jumps, his testimony of experiencing recurrent pain since such time, and post-service treatment records indicating current diagnoses of such disorders, the Board finds that a remand is necessary to afford him a VA examination to determine the nature and etiology of such disorders. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who provided the December 2016 opinion regarding the etiology of the Veteran’s left ankle disorder. The record and a copy of this Remand must be made available to the examiner. If he is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion as to whether it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left ankle disorder, currently diagnosed as chronic musculoligamentous strain had its onset in, or is otherwise related to his military service, to include his August 1975 left foot injury and/or in-service parachute jumps. In rendering such opinion, the examiner is advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. The examiner must also consider and discuss the lay statements of record regarding the onset of the Veteran’s left ankle disorder and the continuity of symptomatology of such disorder. A rationale for any opinion offered should be provided. 2. The Veteran should be afforded an appropriate VA examination in order to determine the nature and etiology of his claimed bilateral knee and bilateral shoulder disorders. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. He or she should then address the following: (A) Please identify all of the Veteran’s currently diagnosed bilateral knee and bilateral shoulder disorders. (B) For each identified bilateral knee and/or bilateral shoulder disorder, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran’s military service, to include his in-service parachuting duties, to include the fitting of the harness and jumps. In offering such opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any bilateral knee and/or bilateral shoulder disorders, or complaints thereof. He or she is also advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. The examiner must further consider and discuss the lay statements of record regarding the onset of his claimed disorders and the continuity of symptomatology of such disorders. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.