Citation Nr: 21069238 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 13-01 502 DATE: November 17, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a sleep disability, to include sleep apnea, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for migraines is denied. Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to service connection for a right lower extremity nerve disability is denied. FINDINGS OF FACT 1. The Veteran's back disability was not incurred in or due to his time in service and is not proximately due to his service-connected disabilities. 2. The Veteran's neck disability was not incurred in or due to his time in service and is not proximately due to his service-connected disabilities. 3. The Veteran's right hip disability was not incurred in or due to his time in service and is not proximately due to his service-connected disabilities. 4. The Veteran's sleep disability was not incurred in or due to his time in service and is not proximately due to his service-connected disabilities. 5. The Veteran's hypertension was not incurred in or due to his time in service and is not proximately due to his service-connected disabilities. 6. The Veteran does not have a migraine disability that was incurred in or due to his time in service or that is proximately due to his service-connected disabilities. 7. The Veteran does not have a TBI disability that was incurred in or due to his time in service or that is proximately due to his service-connected disabilities. 8. The Veteran's right lower extremity nerve disability was not incurred in or due to his time in service and is not proximately due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a sleep disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for a migraine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for a TBI disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for service connection for a right lower extremity nerve disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to June 1970. The Veteran died in October 2018. The appellant is the Veteran's spouse. These matters are on appeal from July 2011 and April 20921 rating decisions by Department of Veterans Affairs (VA) regional offices (ROs). The Veteran had a hearing in June 2014 before a Veterans Law Judge (VLJ). The Veteran was sent a letter, offering him another hearing as the VLJ who held his hearing was no longer available. The Veteran declined another hearing in an October 2016 correspondence. These matters have previously been remanded for further development several times, most recently in April 2021. The development has been completed and the matters are again before the Board. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran contends his claimed conditions were all incurred in or due to his time in service or are proximately due to his service-connected disabilities. The Veteran has said that his right hip condition, back, and hypertension are secondary to his service-connected right knee disability. In particular, the Veteran points to an August 1969 motorcycle accident while in service. (See e.g. May 2014 hearing transcript.) An accident report from the Veteran's service treatment records (STRs) does indeed show the Veteran was in such an accident with bodily injuries noted to his right arm, leg, kneecap, "and other injuries." Neck, Back, Right Hip, and Right Lower Extremity Nerve Claims The Veteran has been diagnosed with neck and back disabilities and has been seen for right lower extremity neuropathy and been diagnosed with diabetic neuropathy. The Veteran has complained of right lower extremity weakness with an examination showing muscle wasting in his right thigh. (See e.g. June 1970 examination.) The Veteran's STRs show he was indeed in a motorcycle accident and received treatment. However, while he was treated for other injuries, he was not treated for neck, back, right hip, or nerve conditions. Indeed, a December 1969 STR showed the Veteran's back was normal. In June 2010, the Veteran denied numbness or tingling or any problems with his peripheral nerves. In April 2011, the Veteran had an examination for his back in which he reported the onset of his back pain was in the early 1980s when he was moving some boxes at work and felt "something slip." The Veteran reported he felt pain radiating into his right hip. However, imaging showed a normal right hip. Additionally, the Veteran reported the onset of his hip problem began in 2009. The examiner noted the Veteran's gait was normal. The examiner opined it was less likely than not the Veteran's right hip and back were caused by or a result of his right knee condition noting the Veteran did not use a cane or crutches and that if the right knee were an issue, he would have expected to gait compensation, but that here, the pain arises in the back and descends to the hip and that the more likely cause was the occupational injury suffered in the 1980s. Pursuant to the remand instructions, the Veteran was afforded addendum opinions in July 2021. The examiner did an extensive review of the Veteran's record and in all opinions rendered, offered citations to the objective record while also acknowledging the Veteran's statements of how his conditions arose. The examiner opined the Veteran's right hip condition was less likely than not proximately due to or the result of a service-related condition of a right knee. The examiner reviewed the Veteran's medical records and examinations and noted there was no evidence the Veteran had an abnormal gait due to a service-connected condition, but that it may be due to his back disability as it was noted the Veteran had a back spasms that resulted in an abnormal gait. The examiner also reported the evidence didn't show the Veteran had a leg discrepancy. The examiner opined it would be necessary to have a prolonged abnormal gait due to a service-connected condition that would cause prolonged abnormal weight bearing and/or leg length discrepancy. The examiner opined it was less likely than not the Veteran's neck disability was incurred in or due to his time in service. The examiner acknowledged the Veteran's statements and also said that SMs are subject to microtrauma that come over time from training. However, the examiner stated there was no evidence the Veteran had continuous treatment from service to present or that his condition was chronic. The examiner also opined it was less likely than not the Veteran's neck disability was proximately due to or the result of his right knee disability. The examiner also reported the Veteran's neck was not aggravated by the Veteran's right knee, saying the two are pathologically two separate conditions. The examiner also reported there was no evidence the Veteran had a prolonged abnormal gait due to his right knee condition or a leg length discrepancy. The examiner stated it would be necessary to have a prolonged abnormal gait due to the Veteran's right knee to cause any neck problems. The examiner opined the Veteran's back condition was less likely than not incurred in or due to his time in service. The examiner noted SMs are subject to microtrauma over time due to training, but that there was no evidence the Veteran had ongoing treatment since service. The examiner noted several medical records that pointed to the Veteran's back condition being caused by a work injury, which he opined "confounds and diminishes direct service connection." The examiner also opined it was less likely than not the Veteran's back disability was proximately due to or aggravated by the Veteran's service-connected right knee disability. The Veteran's back and knee conditions are pathologically separate conditions with no evidence the Veteran had a prolonged abnormal gait or leg length discrepancy due to his right knee. The examiner opined it was less likely than not the Veteran's right hip disability was incurred in or due to his time in service. The examiner noted there were no relevant STRs, while acknowledging the Veteran reported this condition was due to his in-service motorcycle accident. However, the examiner noted there was no ongoing treatment and no additional evidence to support chronicity. The examiner noted the Veteran was diagnosed with arthritis in his right hip in 2015, which was about 45 years after his separation from service. The examiner also opined the Veteran's right hip disability was not aggravated by his right knee disability, again noting there was no evidence of an abnormal gait due to his right knee. However, the examiner noted the Veteran did have an abnormal gait due to his back condition, which confounds and diminishes aggravation by his service-connected right knee disability. The examiner opined it was less likely than not the Veteran's right lower extremity neuropathy was incurred in or due to his time in service noting there was no evidence of treatment for such while in service and no other objective evidence showing chronicity. The examiner also noted the Veteran was seen for back problems with IVDS which was due to a work injury. The examiner also noted the Veteran's neuropathy was due to his diagnosed diabetic neuropathy. The examiner also opined it was less likely than not the Veteran's neuropathy was proximately due to or aggravated by his right knee disability. The examiner reported the Veteran had been diagnosed with diabetic sensory neuropathy, which was due to diabetes. The examiner said this confounded and diminished secondary service connection. The Board has also reviewed the Veteran's medical treatment record and its clear the Veteran has received treatment for these conditions. However, these records do not indicate these conditions were at least as likely as not due to his time in service or that they are at least as likely as not proximately due to his service-connected disabilities. TBI and Headache Claims The Veteran contends that he has diagnosed headaches and TBI that were incurred in or due to his time in service, to include his motorcycle accident. The Veteran has also said that he was told his back may be causing the shooting pain up into his arms, into his neck and head, causing his headaches. (See e.g. May 2014 hearing transcript.) There is some question as to whether the Veteran has a diagnosis of a TBI or headaches. The Veteran's STRs note his treatment for his motorcycle accident, but also note on examination in September 1969, his head was found to be within normal limits with no mention of a TBI or other head trauma. A December 1969 STR showed the Veteran's head was normal. A March 2012 examiner reported the Veteran did not have a TBI or a headache diagnosis. In October of the same year, an examiner again said the Veteran did not have a diagnosis of TBI while in service and no diagnosis of TBI related tension headaches. The July 2021 examiner reviewed the Veteran's file and noted the conflicting evidence. The examiner opined the Veteran was not diagnosed with a TBI or other head injury while in service, to include as a result of his in-service motorcycle accident. The examiner also noted the Veteran's follow up care notes were silent for any type of head trauma. In order to find service connection, the Veteran must have a currently diagnosed disability. There is some question as to whether the Veteran has such diagnoses. Multiple examiners have opined the Veteran did not have currently diagnosed TBI or migraine disabilities. However, even if the Board were to assume the Veteran has diagnoses of TBI and headaches, the Veteran's record does not indicate he had ongoing TBI and headaches while in service. While the Veteran clearly suffered from injuries from a motorcycle accident, treatment records do not indicate he had a head injury and follow up records are also negative for a head injury. Hypertension Claim The Veteran contends he has hypertension that was incurred in or due to his time in service or is otherwise proximately due to his service-connected disabilities. An April 2011 treatment record noted the Veteran took medication for blood pressure. The Veteran's STRs do not show he was treated for ongoing high blood pressure problems while in service. A July 2021 examiner opined the Veteran's hypertension was less likely than not incurred in or due to his time in service. The examiner noted the Veteran's enlistment examination was normal and that while in service, there was no evidence the Veteran had continuous treatment on an ongoing basis and there is no other evidence to support chronicity and continuity. The examiner observed the Veteran was diagnosed with hypertension in 2009, almost 40 years after his time in service. The Board has reviewed the remainder of the Veteran's record, including his medical treatment records and while the Veteran does indeed take medication for high blood pressure, these records do not indicate the Veteran's hypertension was incurred in or due to his time in service nor do they indicate it is related in any way to his right knee disability or medication he takes for this condition. Sleep Apnea Claim The Veteran contends he has sleep apnea that was incurred in or due to his time in service or is otherwise proximately due to his service-connected disabilities. The Veteran has been diagnosed with sleep apnea. However his STRs do not indicate he suffered from ongoing sleep trouble while in service. A July 2021 examiner opined it was less likely than not the Veteran's sleep apnea was incurred in or due to his time in service. The examiner reported there was no mention of sleep problems while in service. The Board understands that it is not sufficient to rely solely on the absence of treatment in the Veteran's STRs to deny the claim. However, the Board has also considered the Veteran's record is negative for any diagnosis or treatment for sleep problems for many years after his separation from service. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Pertaining to all of the Veteran's claimed conditions, in addition to the examinations discussed, the Veteran was provided examinations for several of his conditions in February 2012. However, a previous Board remand found those examinations to be inadequate for various reasons. The Veteran was also provided examinations in June 2015. The August 2018 Board remand found these examinations to be inadequate for various reasons. These examiners all found the Veteran's conditions to be less likely than not incurred in or due to his time in service but also did not provide adequate rationales for their opinions. Thus, while these examinations hold some factual probative value based on the observations of the examiners and the testing performed, the Board places less probative weight on the opinions offered as they did not account for all of the lay and objective evidence of record. They did provide more evidence against these claims. Regarding the claims above, the Board acknowledges the Veteran's statements that his conditions continue to affect his daily life and that he believes they were due to his time in service and his motorcycle accident. The Board has also considered the Veteran's statements about his symptoms and that he has continued to have symptoms since service. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Veteran's statements must be weighed against the objective evidence of record. The medical evidence does not indicate the claimed conditions were due to the Veteran's time in service. In addition to the negative opinions provided, the Veteran's STRs are negative for mention of these claimed conditions and treatment records show large time gaps between the Veteran's separation from service and the diagnosis or treatment of his claimed conditions. Therefore, the Board lends more weight to the examinations, medical records, and objective records on file and has weighed them as discussed above and discussed the relative probative value of each. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against this claim that the Board cannot, unfortunately, ignore. This does not mean that the Veteran's condition did not cause him problems. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.