Citation Nr: 21000798 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-14 539 DATE: January 6, 2021 ORDER Entitlement to service connection for headaches secondary to service-connected multilevel disc diseases and degenerative changes of the cervical spine, status post laminectomy fusion, is granted. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a low back disability, to include spinal defect, is denied. REMANDED Entitlement to service connection for throat cancer is remanded. Entitlement to service connection for bladder cancer is remanded. FINDINGS OF FACT 1. The Veteran’s headaches are proximately due to or aggravated by his service-connected multilevel disc diseases and degenerative changes of the cervical spine, status post laminectomy fusion. 2. The preponderance of the evidence is against finding that the Veteran’s current tinnitus began during active service, or that tinnitus manifested within the applicable presumptive period, or that his current disability is otherwise related to an in-service injury or disease. 3. The competent medical evidence and competent and credible lay evidence does not demonstrate that the Veteran’s currently diagnosed low back disability is related to active duty. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for headaches are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3,303, 3.310(a). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1131, 5103, 5107(b); 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 August 1956 to May 1959. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The record shows that the Veteran’s service treatment records are fire related. Specifically, a January 2015 Personnel Information Exchange System (PIES) reply indicated that the records are fire-related and that all available personnel documents from the Veteran’s reconstructed record have been sent and no service treatment or dental records were recovered from the file. There also were no Surgeon General’s Office (SGO) records available. Under such circumstances, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board’s analysis of the claims is undertaken with this duty in mind. The cited case law does not lower the legal standard for proving a claim of service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). In accordance with the heightened duty to assist in this case, the Board remanded the appeal for further development in June 2018 and September 2019. The Veteran’s claim was remanded by the Board in September 2019 to obtain potential private treatment records. In this regard, VA treatment records reflected that the Veteran had a primary care physician, a Dr. Margolis, outside the VA system. With regard to the private treatment records, the RO sent a letter to the Veteran in November 2019 and January 2020 requesting that he complete and return a VA Form 21-4142, Authorization and Consent to Release Information, so that records from the private physician could be obtained. The letter also informed the Veteran that he may want to obtain and send VA the information himself. The Veteran did not return the signed release or submit private medical records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that VA’s duty to assist is not a one-way street; if the Veteran wishes help, he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence). The Veteran’s failure to return the signed release prevented the RO from taking any further action. Under these circumstances, the Board finds that there has been substantial compliance with its prior remand in this regard. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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. §§ 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). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). The threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. 1. Entitlement to service connection for headaches. A September 2020 VA Headaches Disability Benefits Questionnaire (DBQ) report shows a diagnosis of non specific, clinically musculoskeletal, headaches. During the VA examination, the Veteran reported that he was getting chronic intermittent headaches since his service period. It was noted he had cervical fusion in 2014 for cervical spinal stenosis. He used to get more pain in the neck area especially with movements of head and neck. He related that he was a parachute jumper during service and his neck was stretched one time when he landed on a tree. The examiner, who conducted the DBQ, opined that the Veteran’s current headaches are most likely secondary to residuals of cervical fusion as they were non specific and clinically looked like musculoskeletal. As the Veteran is service-connected for a cervical spine disability and based on the opinion cited above, the Board finds that the criteria for secondary service connection for headaches have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 2. Entitlement to service connection for tinnitus. The Veteran is seeking service connection for tinnitus. While the Veteran has a current diagnosis of tinnitus, the preponderance of the evidence weighs against finding that the Veteran’s tinnitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board notes that neither tinnitus nor manifestations sufficient to identify the disease entity are shown during service. The pertinent regulations require that manifestations are “noted” in the service records and that is not case in this instance. Therefore, while the currently diagnosed tinnitus is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of tinnitus were shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and tinnitus may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no evidence showing that the Veteran’s tinnitus manifested within one year of his separation from service or that he had continuity of symptomatology since service. In fact, the Veteran told the May 2019 VA examiner that although he currently experienced periodic ringing in both ears, this symptom has been present for the previous three to four years. In addition to the lack of evidence showing that tinnitus manifested during active duty service or within close proximity thereto, the evidence of record does not relate a current disability to the Veteran’s military service. The Veteran has claimed that he had noise exposure during his military service. He is competent to report what he experienced in service, including noise exposure. The Veteran is also competent to report that he currently has ringing in his ears. Thus, the remaining question in this case is whether the Veteran’s current tinnitus is related to his military service. The May 2019 VA audiologist reviewed the Veteran’s claims file and noted that while the Veteran’s military occupational specialty (MOS) was combat engineer, a job with high probability of hazardous noise exposure, the Veteran denied experiencing hearing loss or tinnitus while in the military, reporting that both conditions began just three to four years ago, many years after separation. Therefore, the examiner concluded that the Veteran’s current complaint of tinnitus is not a result of or aggravation of military noise exposure since tinnitus is more likely as not found in association with hearing loss, which the Veteran reportedly did not have at separation. The Board has considered the statements of the Veteran regarding the etiology of his current tinnitus. The issue is medically complex, as it requires medical knowledge of the internal pathological process within the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the Veteran’s assertion that his current tinnitus is related to service is not competent lay statements. Concerning this, the Board finds that the May 2019 VA examiner’s opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise and is supported by a complete rationale based on such knowledge. He also reviewed the claims file and considered the Veteran’s reported history. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board concludes that service connection for tinnitus is not warranted. 3. Entitlement to service connection for a low back disability. The Veteran contends that he first experienced back pain in service after performing parachute jumps on a weekly basis. Service personnel records support his assertion that he performed parachute jumps during his active 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 evidence of record shows a current diagnosis of a low back disorder, specifically mild degenerative changes at L5-S1 per lumbar x-ray on January 15, 2015, as reflected by the March 2019 VA examination report. However, the preponderance of the evidence weighs against finding that the Veteran’s current low back diagnoses began during service or are otherwise related to an in-service injury, event, or disease. Unfortunately, service treatment records are not available in this case. Post-service, the first evidence of record showing low back disorder is the January 2015 x-ray mild degenerative changes at L5-S1 per lumbar x-ray on January 15, 2015. As there are no service treatment records documenting the combination of manifestations sufficient to identify a low back disability and sufficient observation to establish chronicity during service, then a showing of continuity of symptomatology is another way to establish service connection. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). On the question of continuity of symptomatology, the evidence in favor of continuity consists of the Veteran statements that since service he has experienced intermittent back pain for many years. Here, the Veteran is competent to describe back pain during service. Layno v Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of personal knowledge). The absence of continuity of low back symptoms from 1959 to 2015 interrupts continuity and is persuasive evidence against continuity of symptomatology. 38 C.F.R. § 3.303(b). Furthermore, the March 2019 VA examiner, who thoroughly reviewed the Veteran’s claims file, took a complete history from the Veteran, and clinically examined the Veteran, opined that the Veteran’s low back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the March 2019 VA examination report, the examiner stated that the Veteran had 30 parachute jumps while in service and recalled an incident of hanging to a tree upside down on his 9th jump; he went to sick call and was given physical therapy and warm pack but with no hospitalization. The Veteran also reported five years after service, he received physical therapy when he worked for an electric company. He believed that the parachute upside down incident started his back problems. At the examination, the Veteran reported a history of intermittent back pain for many years, approximately over 20 years. The examiner explained that the Veteran’s low back condition is less likely than not related to service injury and/or parachute jumps because the 2015 x-ray showed only mild arthritis changes consistent with age. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his current low back disability is related to an in-service injury, event, or disease, in this case he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it does not lie within the range of common experience or common knowledge but requires special knowledge or special experience in the field of orthopedic pathology. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2019 VA examiner’s opinion rendered by a medical professional. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for throat cancer is remanded. 2. Entitlement to service connection for bladder cancer is remanded. The Veteran contends that he developed throat cancer and bladder cancer due to exposure to exhaust fumes while performing his duties as a field engineer at the motor pool during his active service. In support of his claims, he submitted treatise evidence in the form of internet articles on the CDC and NIH websites indicating that there is at least some evidence that diesel fumes may cause bladder cancer and throat cancer. A March 2019 VA examiner provided an opinion that the Veteran’s throat cancer and bladder cancer were less likely than related to service as there is no direct causal relationship between throat and bladder cancer and diesel exhaust fumes during service. In its September 2019 remand, the Board found this opinion inadequate and requested another medical opinion specifically addressing the medical articles from the CDC and NIH websites presented by the Veteran. Pursuant to the Board’s September 2019 remand, in January and April 2020, new medical opinions were obtained from the same VA examiner who conducted the March 2019 VA examination. The examiner continued the opinion that it is less likely as not that the Veteran’s throat cancer and/or bladder cancer are etiologically related to any injury, event or disease in service, to include the claimed exposure to exhaust fumes and/or diesel fumes while performing his duties as a field engineer. In January 2020, the examiner provided the following rationale: Literature review from NIH toxicologic assessment of jet propulsion fuel 8, 5 and diesel fumes, based on the available human & animal data, the sub committee concluded that inhalation of JP 5, JP 8, exposure to exhaust fumes while performing his duties as a field engineer and/or diesel fumes does not present a carcinogenic risk to humans. The conclusion is supported by studies that show that these military fuels/fumes are not genotoxic. In April 2020, the same examiner simply reiterated that while the record indicates these disabilities may be associated with exposure to diesel exhaust in service, there is no direct causal relationship between throat cancer and bladder cancer and diesel/exhaust fumes. The Board finds that the VA medical opinion continues to be inadequate. While the VA examiner stated that the treatise evidence was reviewed, the opinion lacks any further meaningful discussion of the studies presented by the Veteran. Consequently, another remand is necessary to comply with the Board’s remand and VA’s duty to assist. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s claims file any outstanding relevant VA or private treatment records. All attempts to secure this evidence must be documented in the claims file by the RO. 2. Thereafter, forward the Veteran’s claims file to an examiner with the appropriate expertise other than the March 2019 VA examiner to obtain a supplemental opinion as to the nature and etiology of the Veteran’s throat cancer and bladder cancer. A physical examination is only needed if deemed necessary by the VA examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s throat cancer and/or bladder cancer are etiologically related to his military service, specifically the claimed exposure to exhaust fumes while performing his duties as a field engineer in the motor pool. In rendering his or her opinion, the examiner must specifically address the medical articles from the CDC and NIH websites to which the Veteran’s representative links in the April 2018 Informal Hearing Presentation and which indicate that there is at least some evidence that diesel fumes may cause bladder cancer and throat cancer, and the opinion should reflect such consideration. The examiner should provide a fully reasoned explanation. 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. 3. After completing the above, readjudicate the claims. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.