Citation Nr: 21067017 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-18 562 DATE: November 3, 2021 ORDER Service connection for asthma is denied. Service connection for anosmia is denied. Service connection for bilateral hearing loss is denied. Service connection for a bilateral knee condition, to include tendonitis/tendinosis, is denied. Service connection for a bilateral foot condition, to include plantar fasciitis, is denied. REMANDED A claim of entitlement to service connection for a deviated septum is remanded. A claim of entitlement to service connection for a back condition, to include degenerative arthritis/degenerative disc disease of the lumbar spine, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that asthma began during active service or is otherwise causally or etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that anosmia began during active service or is otherwise causally or etiologically related to an in-service injury or disease. 3. The Veteran does not have a hearing loss disability, for VA compensation purposes. 4. The preponderance of the evidence is against finding that a bilateral knee condition (to include bilateral tendonitis/tendinosis) began during active service or is otherwise causally or etiologically related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that a bilateral foot condition (to include bilateral plantar fasciitis) began during active service or is otherwise causally or etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for anosmia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. The criteria for service connection for a bilateral knee condition, to include tendonitis/tendinosis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a bilateral foot condition, to include plantar fasciitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps. from April 1989 to August 1989 and from December 1990 to August 1991. He had additional periods of reserve service until 1994. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including sensorineural hearing loss, will also be presumed if they manifest to a compensable degree within one year following active military service or are shown by evidence of continuity of symptomatology. The presumption of service connection, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). PRELIMINARY MATTERS As discussed in the Board's February 2019 decision, many of the Veteran's claims on appeal stem from his assertion that his disabilities are due to a 1992 motor vehicle accident that occurred while the Veteran was participating in active-duty training as a reservist with the U.S. Marine Corps. In conjunction with an October 2015 submission of his claim for compensation, the Veteran reported that he was riding in a Humvee in the turret with the machine gun when the driver lost control and drove over an embankment causing the Humvee to fall down a 10-to 15-foot slope, flipping over, then landing on its wheels. The Veteran contended he was severely crushed against the turret, breaking his ribs, hitting his head on the turret, and knocking him unconscious. He reported waking up in the back of an amphibious assault vehicle in excruciating pain. He added that he could not recall the details or the dates of his accident, only the fear and pain. In an April 2017 declaration, the Veteran attested that he "lost total consciousness for an unknown duration of time." In April 2017 VA treatment records, based upon the Veteran's report, the record noted that he had a loss of consciousness in a roll-over accident, he hit his head on a machine gun and he woke up in a gurney. See, however, statement dated in June 2019 (the Veteran stated that the accident was not a roll over; however, he was unconscious for 30 minutes). In a December 2017 statement, the Veteran asserted that he suffered from a loss of sense of smell as a result of suffering a traumatic brain injury as a result of the accident. See also June 2019 statement (the Veteran asserts that the 1992 accident knocked him unconscious, deviated his septum and caused anosmia). A review of the Veteran's service medical records confirms that the Veteran was involved in a motor vehicle accident in July 1992 during a period of reserve training. The facts set forth in the Veteran's service regards regarding the accident differ sharply as to the severity, occurrences, and injuries as reported by the Veteran. Specifically, a July 18, 1992, service treatment record describes the accident as the Veteran being in the turret of the vehicle which was going downhill and was thrown against the inside onto his right side. The Veteran was noted as having fractured his ribs, with complaints of pain in the mid-thoracic to lumbar area. This record reflects that the Veteran denied hitting his head, losing consciousness, and having cervical spine pain. The assessment was no other injury; and that the Veteran only other complaint was pain with inspiration. He was discharged from treatment the same day. A July 22, 1992, injury report states that the Veteran was struck by the turret while riding in a hardback hummer going downhill over rough road. Finally, a June 18, 1992, admission treatment record indicates the Veteran was in the turret of the Humvee when the vehicle hit a dip in the road causing him to injure ribs. He was discharged the same day. None of the service treatment records give any indication that the accident was a roll-over, or that the Veteran lost consciousness. None of the service treatment records reflect the Veteran's complaints of, or treatment related to, the Veteran's nose, knees, or feet. The Board finds that the service treatment records significantly outweigh the Veteran's current contentions that the accident was a rollover, that he lost consciousness, that his head/face were injured in the accident, and that he crushed his right foot. The service treatment records were recorded at the time of the accident, whereas the Veteran's statements about his injuries and the vehicle accident being a roll-over occurred decades after the accident and in the context of a claim for compensation. Additionally, in terms of the post-service medical records in the claims file, the Board finds that the more contemporaneous evidence has greater probative value than subsequent history provided by the Veteran. Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board finds the Veteran's post-service description of the accident not credible. The contemporaneous medical records contradict his assertions. In making the above-referenced findings, the Board has considered a June 2019 lay statement from T.C., a U.S. Marine Corps. reservist who served as a corporal with the Heavy Machine-Gun platoon during the summer of 1992 with the Veteran. In his letter, (then) Corporal T.C. explained that he was providing the statement at the Veteran's request because he had recently been contacted by the Veteran, who shared with him that he had sustained spinal injuries and a traumatic brain injury he believed was related to the 1992 HMMWV motor vehicle accident and had subsequently experienced associated medical problems. In terms of the accident, Corporal T.C. reported that he was informed on July 18, 1992 of the Veteran's HMMWV motor vehicle and went to the accident's site out of concern for the Veteran. Upon his arrival, the Veteran had already been placed into the back of an Amtrac (AAV). He was strapped to a backboard and being attended to by a Navy Corpsman. He observed the Veteran not moving or interacting with the medical personnel. Corporal T.C., who was also an emergency medical technician (EMT) and is currently a traffic officer who has investigated hundreds of motor vehicle collisions during his 23-year tenure, reported that he inquired on the day of the accident about the Veteran's level of consciousness and was told by a Corpsman or an assisting Marine that the Veteran had been unconscious but was alert and responding. He stated that he entered the Amtrac to confirm the Veteran's welfare, and remembers the Veteran appearing stunned but giving him the thumbs up. To his recollection, the driver of the HMMWV told him that he hit a large dip in the terrain, losing control of the vehicle and subsequently coming to a rest down a gully. He stated that, to his recollection, the HMMWV did not sustain any significant damage of note and was winched out of the gully it had fallen into. He further stated that he did not recall if the vehicle was driven from the scene or towed back to Camp. He remembered the Veteran convalescing from multiple broken ribs for the remainder of his active-duty training deployment and being heavily under the influence of pain medication. Corporal T.C. went on to state that as a traffic officer with 23-years of experience, he understood the mechanism of injury as well as transfer of energy as related to motor vehicle collisions. He reported documenting in these collision reports numerous people who had complaints of injury to their back, neck and head, post-collision. He continued by noting that the collisions he documented involved motor vehicles at slow to high speeds that were equipped with significantly more safety features than that afforded to an unrestrained Marine in the open turret of a HMMWV. Based upon his knowledge and experience, Corporal T.C. states that the Veteran's claims of injury from the HMMWV motor vehicle accident "did not seem inconsistent or disingenuous with the events as [he recalled] them." The Board appreciates Corporal T.C.'s statement and finds it to be credible given Corporal T.C.'s first-hand knowledge of the events that occurred on July 18, 1992 and his experience as both an EMT and a traffic officer investigating motor vehicle collisions. It is clear from the tone of Corporal T.C.'s letter that he was detailing his statement to the best of his recollection of events. However, the Board finds Corporal T.C.'s statement to be less persuasive and of less probative weight than the Veteran's service treatment records that contemporaneously document the Veteran's own denial to his medical providers of having hit his head during the accident. In these records, the Veteran's examining medical providers also reported, in writing on the day of the accident, that the Veteran did not lose consciousness. While the Board does not doubt Corporal T.C.'s assertion that his recollection, in approximately June 2019, was that he was told that the Veteran "had been unconscious but was alert and responding," the contemporaneous emergency care and treatment records prepared by the Veteran's examining medical providers directly contradicts his memory. When comparing Corporal T.C.'s current memories of what he was told by another person about the Veteran's consciousness in July 1992 with the medical records created in the context of medical treatment given to the Veteran in July 1992, the Board finds the contemporaneous documents to be more persuasive. This finding is supported by other notations on the June 18, 1992 contemporaneous emergency care and treatment record, such as notations in the history section of the exam (Hx) that reflects the Veteran had "no other injury," and that his only complaint at that time was pain with aspiration. The Veteran's physical examination (Px) of the HEENT (Head, Ears, Eyes, Nose and Throat) was reported as atraumatic, the Veteran was found to be alert and oriented to person, place, and time, and he was listed as being in NOD (no apparent distress) other than splinting. Additionally, the Board finds it notable that the Veteran's chest, heart, abdomen, and extremities were also examined on June 18, 1992, with the Veteran's extremities (i.e., his feet) being reported as atraumatic. The Board finds Corporal T.C.'s statement that, based upon his knowledge and experience with motor vehicle collisions as a traffic officer, the Veteran's claims of sustaining spinal injuries and a traumatic brain injury during his in-service accident did not seem inconsistent or disingenuous with the events as he saw them on July 18, 1992, to be of little persuasive value as it applies to support for the veracity of the Veteran's claims. In this regard, the Board observes that in making this statement, it appears that Corporal T.C. did not have the benefit of reviewing the Veteran's service records or his post-service medical records that reflect numerous inconsistent statements on the part of the Veteran as to when his medical conditions began. Additionally, while Corporal T.C. has had contact with people who complained of back, head and neck injuries after their accidents occurred - thus implying that the Veteran's post-collision spinal and head injuries claims could be valid - Corporal T.C. did not have access to the Veteran's conflicting medical records such as to comment on the length of time between when the 1992 accident occurred and when the Veteran began reporting his spinal and head complaints. Lastly, while it is true that the Veteran was in a vehicle that had significantly less safety features than an average automobile at the time of the accident, and the accident occurred at what appears to be a slow rate of speed, these factors are not particularly persuasive in this case as they relate to the validity of the Veteran's claims when the claims are reviewed in the context of the 1992 accident report reflecting the Veteran's documented (and undocumented) injuries and the length of time that passed from the time of the accident to when the Veteran began complaining about spinal pain and having suffered from a traumatic brain injury. 1. Service connection for asthma Initially, the Board initially observes that effective August 5, 2021, VA amended its adjudication regulations to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, and sinusitis (to include rhinosinusitis) in association with exposure to fine particulate matter for those Gulf War Veterans who served in Southwest Asia, Afghanistan, Syria, Djibouti, and Uzbekistan from September 19, 2001 to the present, as long as such conditions manifested within 10 years after separation from the last period of military service that includes a qualifying period of service. 86 Fed. Reg. 42724 (August 5. 2021). Since the Veteran separated from service in August 1991, the new regulations are not applicable to this appeal. The Veteran asserts that his asthma was caused by either (1) head/sinus injuries that occurred during his 1992 in-service accident or (2) exposure to chemicals while in service. See statements dated in December 2016 and April 2017. The Board concludes that, while the Veteran has a current diagnosis of asthma, and evidence shows that the in-service Humvee accident occurred, the preponderance of the evidence weighs against finding that this respiratory disorder began during service or is otherwise related to an in-service injury, event, or disease. As mentioned previously, the events of the Veteran's 1992 motor vehicle accident and subsequent treatment for a rib injury sustained during the accident are clearly documented in the Veteran's service treatment records. The Veteran was noted only as having blunt trauma to the right chest area without having any other injury. No references to an injury to the head or nose was documented. In fact, the Veteran specifically denied having hit his head. It seems reasonable to conclude that if the Veteran suffered from face or head trauma due to the accident, the injury/injuries would have been documented in the emergency care and treatment record at the time of the accident due to the serious nature of those conditions. Given this evidence, the Board finds the Veteran did not hit his head or nose and the accident was not a roll-over in that his service treatment records contradict the Veteran's reports of head and/or nose trauma as a result of the accident. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (the absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur). The Veteran was seen for follow-up medical visits related to his right rib fracture in August 1992 and September 1992. During his September 1992 visit, the Veteran stated that his rib fracture condition resolved and voiced no other complaints. An examination revealed no tenderness of the ribs; and the Veteran was ultimately assessed with rib fracture resolved. Dental records in the Veteran's service file dated in June 1994 document the Veteran denials of having asthma, hay fever, sinus problems, arthritis, and painful joints. Voluminous post-service medical records in the claims file are dated between 2007 to 2021. The earliest of these records reflect that the Veteran was seen in July 2008 for a physical examination. At that time, the Veteran's lungs were reported to be clear, without wheezes. The first complaints of sinus congestion found by the Board are documented in November 2009, which noted congestion of one month's duration. In October 2010, the Veteran was seen for complaints of shortness of breath that he stated began one week prior. The Veteran reported that it seemed his shortness of breath symptoms started when he was treated for a sinus infection (in September 2010). See October 28, 2010 medical records. That same month, he was treated for wheezing with albuterol. He denied having a history of allergies and asthma at that time. Id. During the same office visit, the Veteran appears to have been diagnosed with asthma for the first time. See October 2010 medical records. Turning to medical nexus evidence of record, the claims file contains a December 2015 disability benefits questionnaire (DBQ) prepared by a VA treating provider at the request of the Veteran. This DBQ report reflects that the Veteran started his respiratory problems (asthma) in approximately 1992 after his Gulf War experience. Since the DBQ 1992 date of diagnosis was contradicted by the Veteran's post-service medical records (i.e., that the Veteran was first diagnosed with asthma in October 2010), and did not contain a supporting rationale, the Board found the examination report to be inadequate and remanded for an addendum medical opinion. Thereafter, a new medical nexus opinion was associated with the claims file in November 2019. In the November 2019 medical opinion, a VA examiner indicated that the Veteran's asthma was diagnosed in 2010. The examiner interviewed the Veteran and obtained a medical history from the Veteran that he "was exposed to smoke a lot [in 1993] and started wheezing and feeling short of breath, was diagnosed with asthma later on." After conducting a physical examination and reviewing the Veteran's service and post-service medical records, the November 2019 examiner opined that it was less likely than not that the Veteran's currently diagnosed asthma was related to service. In support thereof, the examiner noted that the Veteran's service records failed to reference any breathing issues the Veteran had in service. She noted that the records also revealed the Veteran not having listed any medical complaints of prior medical history of asthma. Additionally, in the DBQ report itself, the examiner cited to "evidence comments" pertaining to evidence that she specifically took into consideration. The Board finds the November 2019 medical opinion to be credible and persuasive in that it is based upon a thorough review of the record, contains citations to the record of the evidence that was considered, and is supported by the medical evidence of record. Additionally, it is unrebutted. For the record, the Board notes that the Veteran was not serving on active duty in 1993; nor is the Board aware of any periods of active-duty training or inactive duty training after July 1992 that would be applicable to the Veteran's asthma claim. In terms of other possible smoke or toxin exposure, the Board observes that while the Veteran's DD Form-214 for his second period of service (from December 1990 to August 1991) reflects that the Veteran had no foreign service, an Abstract of Service and Medical History form in the Veteran's service file indicates that he was stationed with the 3rd Marine Division in Okinawa, Japan during this time frame. The Veteran submitted articles in support of his asthma claim discussing toxic contamination at Camp Kinser in Okinawa, Japan. The Board finds these articles to be neither probative nor persuasive evidence in support of the Veteran's claim since it appears that the Veteran served at Camp Hansen in Okinawa, Japan, not Camp Kinser. See December 2016 statement, service treatment records. Regardless, even if the Veteran had served at Camp Kinser, the submitted articles are unsupportive in that there is no indication in those articles of general exposure of toxins to servicemembers or exposure by the toxins via the air. Lastly, the Board finds an article submitted by the Veteran titled "Asthma, Sinusitis & Rhinitis" is neither pertinent nor probative evidence supportive of the Veteran's claim in that it only generally discusses various respiratory conditions, their potential causes and treatment. In conclusion, based upon the foregoing, the Board finds that the preponderance of the evidence is against the claim and the appeal must be denied. 2. Service connection for anosmia (loss of sense of smell) The Veteran has been diagnosed with anosmia, or a loss of sense of smell, which he contends is directly related to head and sinus trauma during the 1992 in-service vehicular accident. See December 2016 statement; see also April 2018 medical records (the Veteran complains of anosmia secondary to head injury in service while deployed in the marines); May 2018 medical record (The Veteran reports loss of sense of smell since 1992 accident and that he has a deviated septum); December 2019 medical records (Veteran reports loss of sense of smell since injury). In the alternative, the Veteran contends his anosmia can be attributed to his exposure to burn pits and fires while stationed in Okinawa. Id. The Board concludes that, while the Veteran has a diagnosis of anosmia, the preponderance of the evidence weighs against finding that this condition began during service or is otherwise related to an in-service injury, event, or disease. As explained in the preliminary portion of this decision, the Board finds the Veteran's post-service description of the 1992 accident not to be credible in that the more persuasive and credible evidence reflects that he did not suffer from head or facial trauma as a result of the accident. A review of the Veteran's service record reveals no evidence of complaints of, treatment for, or symptomatology that can be associated with a diagnosis of anosmia. Post-service medical records related for treatment associated with sinus problems in December 2010 reveal the Veteran's reports of his having a good sense of smell. The records go on to reveal that the Veteran had the first of three sinus surgeries in April 2012. The Veteran's second sinus surgery took place in April 2013. At the time of his April 2013 surgery, the Veteran signed a medical consent form that indicated one of the risks associated with the surgery was the loss of taste or smell. It appears that the Veteran did, in fact, suffer from such a loss as a result of his April 2013 surgery; in that a subsequent medical record noted that the Veteran was "sleeping better and [was] able to taste/smell again." See medical record dated in May 2013. During an August 2014 mental health visit, the Veteran also reported that certain smells brought back memories from war. In November 2014, the Veteran emailed the medical care provider who performed his April 2012 sinus surgery, stating that he had no sense of smell. At that time, the Veteran asked if "this qualified him as disabled" and "what benefits may be available to him over the loss of smell." See November 29, 2014 medical record. He was administered a Philadelphia Smell Test, after which he was diagnosed with anosmia. The claims file contains a December 2015 DBQ prepared by a VA treating provider at the request of the Veteran that indicated the Veteran's diagnosis of anosmia was given in 1990. As other evidence of record documented the Veteran's ability to smell until 2014, the Board found the December 2015 examination report to be based upon inaccurate facts and remanded the claim for an addendum medical opinion. The Veteran was then afforded a VA examination in October 2019. During his October 2019 VA examination, the Veteran provided a medical history in which he reported that he struck his face during the July 1992 motor vehicle accident and lost his sense of smell a year later. The Veteran also related having a traumatic deviated septum resulting from a motor vehicle accident in 1993 at Camp Pendleton, after which he began having problems with his ability to smell. The October 2019 VA examiner diagnosed with Veteran with anosmia; and opined that it was less likely than not that the Veteran's anosmia was incurred in or caused by the 1992 accident in service. In support thereof, the examiner cited to post-service medical records dated in March 2013 that reflect the Veteran as having signed a medical consent form related to a 2013 sinus surgery, in which one of listed risks was the loss of taste or smell. The examiner also cited to medical records in support of her opinion that reflected the Veteran as not having a smell test done until 2014 that was determined to be consistent with anosmia. The Board finds the October 2019 medical opinion to be both persuasive and credible, as it considered the Veteran's lay statements and is supported by post-service medical records in the claims file. In making this determination, the Board acknowledges that statements from the Veteran related to the onset dates of his anosmia is contradictory in terms of the records dated prior to 2014 and those thereafter. For the same reasons as discussed above, the Board finds the pre-2014 medical treatment records to be greater in probative weight than the Veteran's latter statements as the records were based on reports made prior to any claim of compensation. To the extent that the evidence of record supports the Veteran's reports of being involved in a motor vehicle accident in June 2013, in which he suffered facial injuries, the Board unfortunately found no evidence indicating that the accident occurred during a period of active service or active duty for training. Thus, the June 2013 accident cannot serve as a basis for the Veteran's anosmia service connection claim. Lastly, in terms of the Veteran's argument that his anosmia can be attributed to his exposure to burn pits and fires while stationed in Okinawa in 1990/1991, the Board finds that the more probative and persuasive evidence disputes this assertion since the records document that the Veteran's sense of smell was not impaired until approximately 2013, when the Veteran had his second sinus surgery. As to the articles the Veteran submitted discussing toxic contamination in Okinawa, Japan, the Board reiterates that there is no indication in those articles of general exposure of the toxins to servicemembers or exposure by the toxins via the air. As for the Veteran's lay statements in that he believes he developed anosmia due to exposure to toxins, the Board finds that he is not competent to provide a medical nexus opinion regarding this issue 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). Therefore, based upon a thorough review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim. The appeal is denied. 3. Service connection for bilateral hearing loss The Veteran is claiming entitlement to service connection for bilateral hearing loss on the basis that he was exposed to hazardous noise in service. Procedurally, normal hearing ranges from 0 decibels (dB) to 20 decibels in all frequencies (Hertz/Hz). VA regulations provide that in order to be granted service connection for hearing loss, the evidence must show that a veteran's auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The report reveals the following auditory thresholds: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz CNC RIGHT 20 15 15 20 25 100% LEFT 20 20 25 30 30 100% The audiologist who examined the Veteran diagnosed him with sensorineural hearing loss in the higher frequencies. The examiner opined that it was at least as likely as not that the Veteran's bilateral hearing loss was related to service due to his military duties as a Heavy Machine Gunner; and his exposure to noise from Howitzers, cruise missile, and anti-aircraft systems that were often without ear protection. Although the VA audiologist provided a positive nexus opinion, service connection at this time must be denied since the evidence shows that the Veteran does not have a current hearing loss disability that can be service connected. This decision does not preclude the Veteran from reapplying for service connection in the future if he feels his hearing acuity has diminished to a level that is considered disabling for VA purposes. 4. Service connection for a bilateral knee condition, to include tendonitis/tendinosis The Veteran was diagnosed with bilateral knee tendonitis/tendinosis in October 2019. He contends that his knee condition is the result of his having to go on forced marches in service, carrying gear that weighed over 150 pounds. The Veteran's service treatment records do not document any complaints of knee pain or treatment for any knee condition. The Veteran has not contended that they should. Post-service medical records first document the Veteran as having knee problems in June 2010. At that time, the Veteran presented with bilateral knee pain and cracking that he reported had been ongoing for 2 years. He told his medical provider that he had a history of stress fracture of the proximal tibia on the left side in 2005. On x-ray, some right-sided patellofemoral lateral narrowing was noted. Otherwise, the medical impression of the x-rays was a negative examination of knees. The Veteran was ultimately assessed with right-sided patellofemoral knee pain for which he said that he would seek physical therapy. Subsequent medical records dated in January 2011 were negative for musculoskeletal and joint pain. According to medical records dated in January 2016, the Veteran was seen complaints of bilateral knee pain. A physical examination revealed bilateral crepitus, right knee worse than the left knee. March 2016 records reveal reports of on-and-off bilateral knee pain; however, x-rays of the knee taken in May 2016 showed no fracture, no effusion, and no significant joint space narrowing. See September 20, 2017 medical records. Lastly, the Board observes that medical records dated in January 2019 note the Veteran's reports of having arthralgia of the knees. A December 2015 disability benefits questionnaire (DBQ) from a VA treating provider diagnosed the Veteran with a bilateral knee strain. The examiner indicated the Veteran was diagnosed with knee strain in 1993 but provided no support for the diagnosis date nor an opinion as to causality. Therefore, on previous remand, the Board found the examination to be inadequate and returned the claim to the appropriate VA Regional Office (RO) for a VA medical opinion. In a medical opinion dated in November 2019, a VA examiner found the Veteran's bilateral knee condition was less likely than not due to service. In doing so, the examiner noted her consideration that there are no service treatment records documenting the Veteran having any knee pain while in service; and, in fact, the Veteran denied having a "trick" or locked knee in a March 1990 report of medical examination. She noted the June 2010 post-service medical record the Board mentioned above that the Veteran began having knee pain in approximately 2008 ("going on for 2 years") and reported his having a history of a stress fracture of the left proximal tibia in 2005. Given the length of time between the Veteran's separation from service in August 1991 (with reserve service until 1994) and the initial post-service complaints of bilateral knee pain occurring in 2008, she opined that his bilateral knee condition was less likely than not due to service. The Board finds that November 2019 medical opinion and supporting medical evidence to be both credible, persuasive, and probative. Additionally, it is unrebutted. The Board also finds the Veteran's post-service medical records outweigh any reports by the Veteran that he has had knee pain since service. The Board finds the private treatment records are more reliable because they were made prior to the Veteran's claim for compensation. The Board is not relying on a lack of contemporaneous medical evidence for the period from service until 2008. Instead, the Board assigns high probative weight to the records stating that there were no musculoskeletal problems. In this regard, while the Veteran believes his bilateral knee condition is related to the physical marches he endured in service, the Board observes that he is not competent to provide a medical nexus opinion regarding this issue. The cause of the Veteran's bilateral knee condition is medically complex, as it requires knowledge of the pathology and physiology of orthopedic conditions. 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, surpa. Given the evidence cited above, the Board finds that the preponderance of the evidence is against the Veteran's bilateral knee service connection claim. Therefore, the appeal must be denied. 5. Service connection for a bilateral foot condition. The Veteran has been diagnosed with bilateral plantar fasciitis. The Veteran asserts that his right foot was crushed in the 1992 in-service accident. He further asserts that he has developed a left foot condition resulting from his having to over-compensate his right foot condition by putting extra strain on his left foot; and that these things resulted in his developing plantar fasciitis. See December 2016 statement from the Veteran's attorney. Alternatively, he asserts that he has a bilateral foot disorder is due to carrying heavy packs on long marches in service. The Veteran's service treatment records do not document any complaints of, or treatment for, either his left foot or right foot. In fact, the Veteran denied having foot trouble in a March 1990 report of medical history form. The Veteran has not asserted that his service treatment records are in error, or that they should reflect symptomatology related to his feet. Post-service medical records in the claims file do not reflect a diagnosis of a foot disorder. The only reference to the Veteran's feet documented in 2014 involves a nail fungus. See May 2014 medical records. However, in a December 2015 Knee and Lower Legs Conditions DBQ, the Veteran reported a loss of sensation in his feet when walking, sitting, and kneeling. Interestingly, during a December 2015 Peripheral Nerves DBQ, the Veteran related his bilateral foot numbness to a 1993 motor vehicle accident not his accident in 1992 while in service. Subsequent medical records dated in January 2016 reflect the Veteran's reports of having on-and-off foot pain. December 2017 medical records document the Veteran's reports of having paresthesias all the time with fluctuating numbness "since the injury." However, during a podiatry visit in April 2018, the Veteran was seen only with complaints of onychomycosis to the left hallux nail, with no other pedal complaints reported. Lastly, the Board observes that the most recent active problem medical list the Board located in the claim file is dated in March 2021. It does not reflect a diagnosis pertaining to either of the Veteran's feet. A December 2015 DBQ from a VA treating provider diagnosed the Veteran with bilateral plantar fasciitis, purportedly in 1988. No opinion as to causality was rendered; and the examination improperly took into consideration the Veteran's inaccurate reports of having his right foot crushed during his 1992 in-service motor vehicle accident. Therefore, the Board previously found the examination to be inadequate and remanded the claim for a VA examination. In a November 2019 medical opinion, a VA medical examiner opined that it was less likely than not that the Veteran's bilateral foot condition was related to his service, to include his in-service motor vehicle accident. She indicated her review of the Veteran's medical records and noted the Veteran's lack of complaints related to his feet at the time of his 1992 accident or soon thereafter. In this regard, she indicated that the Veteran was seen for follow-up medical visits related to his accident in late July 1992, August 1992, and September 1992. The records of these visits reveal that the Veteran reported a few days after his accident that he was feeling good, and his pain medication was working. A physical examination at that time documented that the Veteran could almost touch his toes. In August 1992, the Veteran's broken ribs were reported as healing, and his medical provider reported that the Veteran did not have any other complaints during the visit. Lastly, the examiner noted in September 1992 that the Veteran's rib pain had resolved; and that the Veteran had no other complaints. As mentioned in the preliminary section of this opinion, the Board finds that the Veteran did not smash his right foot during his 1992 in-service accident or suffer from any other foot injury as a result of the accident. The November 2019 medical opinion and service treatment records support the Board's finding in that it seems illogical that if the Veteran suffered from a broken foot at the time of the accident that it would not be documented in either the 1992 accident medical record or during the Veteran's follow-up medical examinations. To this extent, the Board finds the November 2019 medical opinion to be both probative ad persuasive given its supporting rationale and clearly thorough review of the evidence. Although the VA examiner did not address the Veteran's contention that he developed a left foot condition as a result of his overcompensating for his right foot disorder, the Board finds this was not an error since the Veteran cannot be service-connected on a secondary basis to his right foot since his right foot is not service-connected. Therefore, given the medical evidence in this case and the lack of a positive medical nexus opinion in the Veteran's favor, the Board finds that the preponderance of the evidence is against the Veteran's claim. Therefore, the appeal for service connection for a bilateral foot disability must be denied. REASONS FOR REMAND 1. Service connection for a deviated septum The Veteran contends he suffered a deviated septum when he was involved in the 1992 in-service Humvee accident. As noted above, the Board finds the Veteran did not strike his head or nose in the 1992 in-service accident nor was the accident a roll-over. A review of the evidence reveals that the Veteran has had three sinus surgeries - a functional endoscopic sinus surgery on April 6, 2012, a functional endoscopic sinus surgery on April 3, 2013, and a bilateral endoscopic sinus surgery (revision) on July 30, 2018. In February 2019, the Board remanded the Veteran's claim for a VA medical opinion. The examiner was asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a deviated septum that began during active service or is related to an incident of service. In October 2019, the Veteran was afforded a VA examination in relation to his claim. Nasal x-rays were taken at the time of the examination, the results of which were normal. In a November 2019 record, a VA examiner indicated that she could not provide the medical opinion requested by the Board because she found no pathology to render a diagnosis of deviated septum. However, the Board observes that a March 2018 CT of the Veteran's sinuses reflects that the Veteran was found at that time to have, among other things, a slight deviation of the nasal septum to the right. Medical records dated May 28, 2018 suggest that the Veteran's deviated septum was the result of surgery ("nasal septum deviation s/p surgery"); see also March 7, 2011 medical records (a CT of the sinuses without contrast did not reference any deviation of the septum). The records suggest that the Veteran was scheduled for a possible nasal septoplasty with turbinate reduction in April 2013, but the surgery was not performed. See February 21, 2013 medical records (the planned surgery was a bilateral revision functional endoscopic sinus surgery with Brain Lab, possible septoplasty and inferior turbinate reduction); April 3, 2013 medical records (surgical procedures performed consisted of (1) a bilateral inferior turbinate reduction, intramural; (2) a bilateral revision endoscopic anterior and posterior ethmoidectomy, (3) a bilateral revision endoscopic maxillary antrostomy, (4) a bilateral revision endoscopic frontal sinusotomy, and (5) a bilateral revision endoscopic sphenoidotomy). The Board questions whether the Veteran underwent a nasal septoplasty in relation to his July 30, 2018 surgery, as the planned surgery included a "possible septoplasty (midline septum)," and records pertaining to an August 2021 nasal endoscopy indicate that the Veteran's right and left septum were intact and midline. See July 30, 2018 medical records, August 16, 2021 medical records. The Board's review of the claims file failed to reveal any surgical notes pertaining to the July 30, 2018 surgery. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate once VA has provided it. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the outstanding questions regarding whether the Veteran had a deviated septum during the course of this appeal for which he underwent surgery, and whether the deviated septum was at least as likely as not related to service, the claim must be returned to the October 2019 examiner for a supplemental opinion. 2. Service connection for a back condition is remanded. The Veteran has been diagnosed with degenerative arthritis/degenerative disc disease of the lumbar spine. His primary theory of entitlement to service connection is that injured his back during the 1992 in-service motor vehicle accident discussed above. Alternatively, he contends that it is due to carrying a heavy sack on marches in service. He reports having continuous back pain since service. The Board remanded the Veteran's claim in February 2019 for a medical opinion. Two VA medical opinions were subsequently associated with the claims file. Unfortunately, a review of the May 2020 medical opinion reveals that the VA examiner erred in her understanding of the Veteran's 1992 motor vehicle accident records in that she considered the Veteran as not having reported back pain at the time of the accident ("in 1992, which had no complaints of back pain"). A review of the records reflects that while the Veteran denied having thoracic spine pain at the time of the accident, he reported having some lumbar spine pain. Therefore, the claim must be remanded for a supplemental medical opinion. A remand is also warranted since it appears the May 2020 examiner utilized the wrong legal standard in weighing the medical evidence in this claim. In weighing the evidence, the examiner was asked to provide an opinion as to whether it was at least as likely as not (50 percent or greater probability) a condition was caused in or caused by a claimed in-service injury, event, or illness. In her medical opinion, the examiner stated that while the Veteran was in a motor vehicle accident (MVA) during service "he had subsequent MVA's documented that a back injury occurred therefore you cannot say that his current back condition is 51 % due to the 1st MVA which was deemed to be in line of duty." Therefore, the matters are REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the October 2019 sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. After reviewing this remand in full, the examiner should be asked to comment on whether the Veteran had a prior deviated septum for which he underwent a nasal septoplasty. If the Veteran previously had a deviated septum, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran suffers from the residuals of a deviated septum that began during active service or was related to an incident of service. For this opinion, the examiner should note that the Board has determined that the in-service vehicle accident was not a roll-over type accident, but rather, that the Veteran was thrown against the inside of the Humvee while traveling over rough terrain. The Board has also found that the Veteran did not sustain any injuries to the head or nose as a result of his 1992 in-service accident. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If the above requested opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Return the Veteran's claims file to the examiner who conducted the October 2019 back (thoracolumbar spine) examination or the examiner who provided the May 2020 medical opinion discussed above so a supplemental opinion may be provided. If either examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. Obtain an addendum medical opinion from an appropriate clinician regarding whether the Veteran's lumbar spine degenerative arthritis is at least as likely as not related to his in-service accident, with consideration of the back complaints noted on his July 18, 1992 service accident records and two other motor vehicle accidents that occurred in April 2013 and June 2013. Please address the Veteran's contentions that he had back pain continuously since service. For this opinion, the examiner should note that the Board has determined that the in-service vehicle accident was not a roll-over type accident, but rather, that the Veteran was thrown against the inside of the Humvee while traveling over rough terrain. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If the requested opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Talpins 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.