Citation Nr: 21071704 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-28 854 DATE: December 1, 2021 ORDER Entitlement to service connection for low back disability, to include as secondary to service-connected bilateral knee osteoarthritis, is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's current low back disability did not manifest during service or within one year after separation from service. The Veteran's low back disability is not related to active service, to include multiple parachute jumps. 2. The Veteran's current low back disability is neither caused nor aggravated by the Veteran's service-connected bilateral knee osteoarthritis. 3. The Veteran's hearing loss did not manifest during service or within one year after separation from service. The Veteran's hearing loss is not related to active service. 4. The Veteran's tinnitus did not manifest during service or within one year after separation from service. The Veteran's tinnitus is not related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for low back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for bilateral hearing loss 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 entitlement to 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1977 to March 1981. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and after an October 2018 Board remand to the Agency of Original Jurisdiction (AOJ) for further medical examinations and opinions. The RO complied with the Board's remand instructions, affording the Veteran adequate medical examinations for the reasons indicated below. The Veteran was subsequently granted service connection for right and left knee strain with osteoarthritis directly related to his service in September 2020; however, the RO denied the Veteran's claims for service connection for low back disability, bilateral hearing loss, and tinnitus, as explained in its July 2021 supplemental statement of the case. Service Connection A Veteran will be compensated for disability resulting from an injury or disease contracted in in the active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131. Generally, veterans seeking compensation for a service-connected disability must show: (1) a current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310. To establish service connection on a secondary basis, a veteran 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 disease or injury. 38 C.F.R. §3.310. Certain chronic diseases (including organic diseases of the nervous system (e.g., sensorineural hearing loss and tinnitus)) will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period (one year for organic diseases of the nervous system) following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. 1. Low Back Disability While in the Army, the Veteran primarily served as a parachute rigger. His duties also required him to conduct parachute jumps that, at times, resulted in knee and back pain upon landing. The Veteran completed 50 to approximately 200 jumps over his career. After his military service, the Veteran worked over 30 years as a truck driver until 2013. The Veteran contends that his current low back disability was caused by his multiple parachute jumps or is related to his service-connected bilateral knee disability. The Veteran was diagnosed with low back arthritis in 2011 and lumbosacral strain in 2014. After the Board found the Veteran received an inadequate VA examination in December 2014, the Veteran underwent a VA examination of the thoracolumbar spine in November 2019. The November 2019 VA examiner, conducted an in-person examination of the Veteran. The Veteran affirmed that he began experiencing his back symptoms over the past eight-nine years. The Veteran attributed his back pain to back and knee pain he experienced during a few parachute landings. After considering the examination, the Veteran's claims, and the Veteran's records, the VA examiner concluded that the Veteran's lumbosacral spine symptoms were less likely than not (less than 50% probability) incurred in or caused by the Veteran's service and parachute jumps. The VA examiner offered the following rationale: Veteran has no documentation of any back issues while in service. He reports more recent onset of back pain about 8 years ago, over 30 years after active duty service. There is no radiographic evidence (NORMAL MRI in 2017) of abnormality, i.e. arthritis/disc degeneration that is suggestive of long-term sequelae of repeated trauma from parachute jumps. There is no evidence of ongoing symptoms of, or treatment of symptoms for low back pain. After the Veteran was granted direct service connection for right and left knee strain with osteoarthritis in September 2020, a different VA examiner reviewed the Veteran's records in July 2021 and concluded "[i]t is less likely than not that the lumbosacral spine strain/disability is proximately due to or the result of the Left or Right knee strain with osteoarthritis." The VA examiner reasoned Arthritis in one joint does not cause arthritis in another joint. A thorough review of medical literature failed to show such causal relationship. It is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. The arthritis of the lumbosacral spine is related to chronic wear and tear and advanced age. ... Review of the c[laims] file does not support a leg length discrepancy or a Trendelenburg gait due to the left or right knee condition and does not support the lumbosacral spine strain/disability as a compensatory mechanism due to the SC left or right knee condition. A nexus is not established. The VA examiner also opined that the Veteran's lumbosacral spine strain/disability was less likely than not aggravated beyond its natural progression by the bilateral knee strain with osteoarthritis. The VA examiner provided the following rationale: Review of the [claims] file does not support a leg length discrepancy or a Trendelenburg gait due to the SC right or left knee osteoarthritis, strain and does not support aggravation beyond natural progression of the lumbosacral spine strain/disability by the SC right or left knee condition. 08/04/2017 MRI Lumbar spine results was documented as Unremarkable. No evidence of aggravation identified. While the Veteran provided credible, competent evidence establishing short-term, low back injuries after a few parachute jumps during service and experiencing low back pain after service, his statements also provided credible, competent evidence establishing the onset of his current low back pain as decades after his active service and after decades of driving a truck. The Veteran described his post service back pain as beginning many years after service rather than indicating he experienced a continuity of back symptoms after his in-service injuries. Although the Veteran contended that his current low back disability is attributed to his military service, he is not competent to opine on this complex medical questions. While veterans are competent to opine on some medical matters, the question of whether current back disabilities including arthritis are related to service relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran's statements indicating a relationship between his current low back arthritis to his in-service parachute jumps are therefore not competent. To the extent they are competent, the specific, reasoned opinions of the VA examiners are of greater probative weight than the Veteran's general lay assertions. Here, the VA examiners appropriately addressed the Veteran's contentions and adequately considered the evidence in rendering reliable medical opinions regarding the Veteran's service connection claims for his low back disability. The VA examiners explained the reasons for their conclusions based on an accurate characterization of the evidence of record, specifically addressing the Veteran's parachute jumps, the Veteran's lay statements, and both the potential causation and aggravation of the back disability by the service-connected knee disabilities, based on an accurate characterization of the evidence of record, and their opinions are entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Importantly in this case, the competent lay and medical evidence is consistent and fails to establish the nexus necessary to warrant service connection on a direct or secondary basis. For the foregoing reasons, the preponderance of the evidence reflects that arthritis of the back did not manifest in service or within the one-year presumptive period and that a current low back disability is not related to service. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Hearing Loss and Tinnitus The Veteran's duties during his service as an Army parachute rigger exposed him to aircraft, firearm, and explosive noises. The Veteran was also regularly exposed to occupational noise as a truck driver for approximately 30 years after his service. The Veteran contends that his current hearing loss and tinnitus were caused by his exposure to noise during service. The November 2012 examination confirmed the Veteran met the criteria for bilateral sensorineural hearing loss. 38 C.F.R. 3.385. The Veteran also stated that he experienced intermittent tinnitus. During a January 2015 VA examination, the VA examiner found the Veteran suffered from bilateral sensorineural hearing loss. The Veteran explained that his bilateral hearing loss began in 2011-2012. Additionally, the Veteran claimed to experience intermittent tinnitus since service, but maintained it had not been present since 2012. The VA examiner noted that the Veteran had no current complaint of tinnitus. A VA examiner again assessed the Veteran's hearing loss and tinnitus claims in November 2019. The VA examiner conducted an in-person examination and reviewed the Veteran's records. The VA examiner found the Veteran suffered from bilateral sensorineural hearing loss. The VA examiner also stated that the Veteran experiences recurrent tinnitus. During this examination, the Veteran reported that his hearing loss began ten years prior to the examination. The Veteran maintained that his tinnitus began twenty years beforehand. In addition to conducting the November 2019 examination, the VA examiner rendered opinions regarding service connection for the Veteran's hearing loss and tinnitus. In reaching each conclusion, the VA examiner considered the Veteran's lay statements, finding the Veteran's "version of his military history...accurate and reliable." The VA examiner explained [t]here was no evidence of or treatment for hearing loss or tinnitus found in [the Veteran's service records]. In addition, the [V]eteran reported that the hearing loss began ten years ago (27 years after discharge from service). He also reported that the tinnitus began twenty years ago (18 years after discharge from service). The VA examiner then consulted, applied, and cited relevant, reliable medical literature regarding the effects of noise exposure on veterans. The VA examiner determined the Veteran's "complaints of hearing loss and tinnitus are less likely than not related to his military service or his MOS of parachute rigger, which has a low probability for exposure to hazardous noise." As the VA examiner explained the reasons for his opinions based on an accurate characterization of the evidence of record including the lay statements, his opinion is entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran currently suffers from hearing loss and tinnitus; however, these disabilities, as supported by both the competent, consistent lay and medical evidence were not the result of the Veteran's military service. The competent lay and medical evidence fails to establish a causal relationship between the Veteran's current hearing disability and tinnitus and his military service. The evidence shows the Veteran's current hearing loss began well over one year after his service and is not attributable to his duties in the Army. Similarly, the consistent lay and medical evidence shows the Veteran's tinnitus began over one year after his service and is not linked or otherwise attributable to his duties in the Army. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is inapplicable, and his claim of service connection for bilateral hearing loss and tinnitus is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals 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.