Citation Nr: 21071927 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-28 288 For DATE: December 1, 2021 ORDER Entitlement to service connection for bilateral knee osteoarthritis due to service-connected left foot hallux valgus is granted. Entitlement to service connection for a back disorder is denied. Entitlement to service connection for migraines is denied. Entitlement to service connection for a bilateral elbow disorder is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the bilateral knee osteoarthritis is due to the service-connected left foot hallux valgus. 2. The preponderance of the evidence is against a finding that the Veteran's back disorder is related to service. 3. The preponderance of the evidence is against a finding that the Veteran's migraines are related to service. 4. The preponderance of the evidence is against a finding that the Veteran's bilateral elbow disorder is related to service. 5. The preponderance of the evidence is against a finding that the Veteran's tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral knee osteoarthritis as secondary to service-connected left foot hallux valgus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a back disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for migraines are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a bilateral elbow disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for tinnitus are not 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 from October 1978 to October 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from May 2013 and September 2018 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). On the May 2017 VA Form 9, the Veteran requested a Board hearing by live videoconference at a local VA office. This was also requested on the December 2019 VA Form 9. In an August 2020 letter, the Veteran's representative reported that the Veteran would like to waive their right to have a hearing, and have the scheduled hearing canceled. The Board notes that relevant evidence was added to the Veteran's claims file after certification and transfer to the Board that was not reviewed by the RO. In September 2021 the Board sent a letter to the Veteran asking whether they would like to have the evidence reviewed by the RO, or whether they would like to waive that right and proceed with adjudication. In a November 2021 letter, the Veteran's representative stated that the Veteran waives RO consideration of the evidence, and requested that the Board proceed with adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral knee osteoarthritis due to service-connected left foot hallux valgus The Veteran alleges that the bilateral knee disorder is related to the service-connected left foot hallux valgus. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). December 2019 private treatment records (PTRs) indicate a diagnosis of bilateral knee osteoarthritis. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service event or injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's service treatment records (STRs) are silent for any complaints of or treatment for any knee issues, including at the February 1978 entrance examination, and the August 1981 separation examination. However, in a December 2019 statement, the Veteran asserted that the knee disorder is related to the service-connected left foot hallux valgus. Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record does support a finding that the knee disorder is related to active service. The Veteran submitted a December 2019 private medical opinion. The examiner noted the diagnosis of bilateral knee osteoarthritis confirmed by x-ray and MRI imaging, and explained that they reviewed the Veteran's post-service treatment records. The examiner opined that it is at least as likely as not that the knee disorder is secondary to the service-connected left foot disability. The examiner explained that the Veteran was a 53-year-old male with a history of a left foot injury during service, and that the Veteran had a left knee meniscus injury and subsequent arthroscopy and meniscectomy. The examiner noted that the Veteran has had progressive osteoarthritic changes secondary to the alteration in gait and surgery as a result of the left foot disorder. Finally, the examiner stated that the Veteran's current symptoms limit the ability to walk, stand, climb, squat, and carry. The Board affords the December 2019 private medical opinion significant probative value as it reflects consideration of the Veteran's medical history and lay assertions, and is supported by well-reasoned rationale. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As there is no other medical opinion in significant conflict with the December 2019 private medical opinion, the Board finds that the preponderance of the evidence is in the Veteran's favor. Accordingly, service connection for bilateral knee osteoarthritis due to the service-connected left foot hallux valgus is warranted, and the claim is granted. 2. Entitlement to service connection for a back disorder The Veteran seeks service connection for a back disorder. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). June 2018 PTRs note diagnoses of lumbar spondylosis, intervertebral disc syndrome, and lumbar radiculopathy. Accordingly, the first element of service connection. Second, the Board finds that there was not an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's STRs are silent for any complaints of or treatment for any back issues, including at the February 1978 entrance examination, and the August 1981 separation examination. Significantly, the Veteran and their representative have made no assertions of an in-service injury, or raised any arguments at all for why service connection should be granted. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including providing a medical examination when necessary to make a decision on a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c)(4). Here, the RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). However, the Board finds that remanding for a VA examination is not warranted at present. The first complaints of any back issues appear in PTRs nearly 30 years following separation service, and as noted above, the Veteran has made no statements or arguments explaining why the back should be service-connected. The Veteran has not even asserted continuity of symptomatology. In other words, there are no grounds on which service connection may be granted here. Accordingly, the claim of entitlement to service connection for a back disorder is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for migraines The Veteran alleges that migraines began during service and have existed since that time. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A November 2019 VA examination confirms a diagnosis of migraines. Accordingly, the first element of service connection is met. The Veteran's STRs are silent for any complaints of or treatment for any headache conditions, and the Veteran did not report any on their February 1978 entrance examination. On the August 1981 separation report of medical history, the Veteran did endorse frequent or severe headaches; however, the corresponding report of medical examination conducted one week later found that the Veteran's condition to be normal except for their feet. At the November 2019 VA examination, the Veteran reported that the condition occurred spontaneously and gradually over time beginning in 1978. However, in a February 2021 statement, the Veteran asserted that in October 1978 they rushed into the latrine, slipped on the wet floor, and hit their head on the concrete wall and floor. The Veteran explained that they noticed pain radiating from the right side of their head, and that they continued to have symptoms intermittently throughout their life. The Veteran stated that they did not seek treatment during service because they self-medicated instead. The Board finds these statements competent as they are capable of lay observation. 38 U.S.C. § 1154(a) (2012); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). However, the Board does not find the statements to be credible due to the inconsistency between them - at the VA examination the Veteran reported they appeared spontaneously, and then later the Veteran stated that they are a result of an accident in a latrine. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Further, the claim of an accident in a latrine is not supported by the record as the Veteran reported other ailments during service. June 1980 STRs note complaints of abdominal pain and an eye injury. December 1980 STRs note complaints of an injury to the left big toe. Recurrent migraines are the type that a reasonable person would report while in the military with access to healthcare, and if the Veteran was experiencing problems with migraines during service the Board would expect that they would have reported these problems to medical professionals. Even if the Board were to find the Veteran's accounts of an in-service injury to be credible, the evidence of record still does not support a finding that the migraine headaches are related to active service. Following the November 2019 VA examination, the examiner provided a negative nexus opinion. The examiner noted that after reviewing all medical records and performing a physical exam, they opined that it is less likely than not that the Veteran's current migraines are related to service. The examiner explained that the complaint of headaches documented during the separation examination in 1981 is more likely an acute event without long term sequela since there is no sign of continuation of symptomatology during or after separation from active service. The Board affords the November 2019 VA medical opinion great probative value as it reflects careful consideration of the record and is supported by well-reasoned rationale. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean, 13 Vet. App. at 448-9. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301 (2008). The Board has also considered the Veteran's statements in support of their claim. While they are competent to report on the symptoms, the Board finds the Veteran not competent to offer an opinion as to whether the migraines are related to any instance of service since the record does not indicate that they possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and- effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology migraine headaches, and, consequently, their opinion on such matters is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board has also considered whether presumptive service connection can be established where there is evidence of continuity of symptomology of a chronic condition since service. See 38 C.F.R. § 3.309. However, the record of evidence does not show a diagnosis until many years following separation from active-duty service. Therefore, consideration based on presumptive service connection for continuity of symptomatology is not warranted. For the above reasons, the preponderance of the evidence is against the claim, and service connection for migraine headaches is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a bilateral elbow disorder The Veteran alleges that the bilateral elbow disorder began during service and has existed since that time. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). June 2018 PTRs note diagnoses of left medial epicondylitis, and right elbow joint pain. Accordingly, the first element of service connection is met. The Veteran's STRs are silent for any complaints of or treatment for any elbow issues, including at the February 1978 entrance examination, and the August 1981 separation examination. However, in the February 2021 statement noted above, the Veteran asserted that they also injured their elbows in the reported October 1978 latrine accident. Like with the migraine headaches, the Veteran stated that they did not seek treatment and opted to self-medicate instead. Although, as for the reasons noted above, the Board does not find this statement to be credible, chiefly in that the Veteran readily sought treatment for other medical ailments while in service, and the first complaints of elbow issues do not appear in the claims file until over 30 years following separation. The record reflects no medical opinion relating any current elbow disorder to the Veteran's military service. While the Board acknowledges that the Veteran has not been afforded a VA examination for this claim, as an in-service onset of the disability is not suggested by the medical record, despite the assertions that they had elbow pain in service, remand for an examiner's opinion is not warranted. See McLendon, 20 Vet. App. 79. As a chronic disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of a current bilateral elbow disorder cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical history at separation from service where they denied symptoms indicative of a painful or trick elbow. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. For the above reasons, the preponderance of the evidence is against the claim and service connection for a bilateral elbow disorder is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. 5. Entitlement to service connection for tinnitus The Veteran alleges that tinnitus began during service and has existed since that time. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A November 2019 VA examination confirms a diagnosis of recurrent tinnitus. Accordingly, the first element of service connection is met. The Veteran's STRs are silent for any complaints of or treatment for any hearing issues or tinnitus, including at the February 1978 entrance examination, and the August 1981 separation examination. At the November 2019 VA examination, the Veteran reported that the tinnitus began in 1979 from unknown circumstances. However, the Veteran and their representative have otherwise made no assertions of any in-service injury, or raised any arguments at all for why service connection should be granted. Following the November 2019 VA examination, the examiner provided a negative nexus opinion. They noted that the STRs showed normal hearing at enlistment and separation. The examiner explained that the Veteran's Military Occupational Specialty (MOS) of network switching systems operator/maintainer had a low probability of hazardous noise exposure, and that audiometric evidence found in the STRs does not support a change in auditory function due to noise exposure. The examiner also stated that the STRs show no complaint of tinnitus, and that the record does not support any continuity of care from separation to the time of the claim. The examiner explained that the Veteran had a 30-year post service employment career as a municipal law enforcement officer which more likely than not had a moderate probability of hazardous noise exposure. Therefore, the examiner concluded that it is less likely than not that the tinnitus is related to service. The Board affords the November 2019 VA medical opinion great probative value as it reflects careful consideration of the record and the Veteran's lay statements, and is supported by well-reasoned rationale. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean, 13 Vet. App. at 448-9. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301 (2008). The Board has considered the Veteran's statements, to include assertions that the tinnitus is related to service. Tinnitus is readily identifiable by its features and, thus, is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, the Veteran is not shown to have medical education or experience, they are a lay person and are competent to report (1) symptoms that are observable to a layperson, e.g., ringing in the ears; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently opine as to the specific etiology of a condition as this is a medically complex issue. Thus, the lay assertions do not constitute evidence upon which service connection can be granted. As a chronic disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of a current bilateral elbow disorder cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical history at separation from service where they denied symptoms indicative of hearing loss of tinnitus. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. Moreover, according to PTRs, the Veteran specifically denied tinnitus as recently as February 2012, more than 30 years following separation from service. For the above reasons, the preponderance of the evidence is against the claim and service connection for tinnitus is denied. (Continued on the next page) In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.