Citation Nr: 21074448 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 13-09 222 DATE: December 15, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a headache disorder as aggravated by service-connected tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran's low back disability is not shown to have been present in-service, or for many years thereafter, nor is it shown to be related to service. 2. The preponderance of the evidence demonstrates that the Veteran's headache disorder is not shown to have been aggravated by his service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a headache disorder as aggravated by service-connected tinnitus have not been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310, REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1972, and in the Southwest Asia Theater of Operations from February 3, to June 10, 1991. In September 2013, the Veteran appeared at a hearing held at the Regional Office (RO) before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board acknowledges that this appeal has a rather complex procedural history. In July 2018, the Board denied the Veteran's claim with respect to all 8 issues that were on appeal. The Veteran appealed to the Court of Appeals for Veterans Claims (Court), which later issued a Memorandum Decision in January 2020. The Court noted that the Board denied entitlement service connection for a low back disability, including as due to an undiagnosed illness; a headache disorder on a direct basis, as secondary on a causal or aggravation basis to service-connected tinnitus, and as due to an undiagnosed illness; a respiratory disorder, claimed as chronic obstructive pulmonary disorder or a restrictive lung condition, including as due to an undiagnosed illness. The Court found that the Veteran raised no argument as to the portions of the Board's decision that denied entitlement to service connection for a low back disability as due to an undiagnosed illness; and the headache disorder on a direct basis, as caused by service-connected tinnitus, or as due to an undiagnosed illness. The Court also found that the Veteran did not raise any arguments concerning the Board's denial of entitlement to service connection for a joint and muscle pain disorder, a skin disorder, and a sleep disorder; and a compensable disability rating for bilateral hearing loss prior to March 22, 2017, and in excess of 10% thereafter. The Court therefore found that the Veteran abandoned his appeal of those issues and dismissed them. The Court, in its January 2020 order, also vacated and remanded the issues of entitlement to service connection for a low back disability (other than as due to an undiagnosed illness) and entitlement to service connection for headaches as aggravated by service-connected tinnitus. The Court also affirmed the portion of the Board's decision that denied entitlement to service connection for a respiratory disorder. In July 2020, the Board remanded the Veteran's appeal for additional evidentiary development. The remaining issues, as they have been characterized above, have since been returned to the Board for further consideration. The Board observes an October 2020 correspondence, in which the Veteran and his former representative requested a second Board hearing for the issues on appeal. Subsequently, in a September 2021 brief, the former representative withdrew the request for another Board hearing and submitted additional argument instead. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To prevail on the issue of service connection there must be evidence of a current disability, in service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain chronic diseases may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may 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(a). Establishing service connection on a secondary basis requires evidence sufficient to 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(b); Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. 1. Entitlement to service connection for a low back disability The Board notes that, at the time of the service separation examination in January 1972, the Veteran gave a history of a contusion to his lower back secondary to a fall down stairs in 1969, with no problems since that time except an occasional sharp pain on movement. On subsequent service separation examination in June 1991, the Veteran once again gave a history of low back pain, reportedly present since his service in Saudi Arabia in March 1991. The Veteran received a VA examination in April 2012. It was noted that the Veteran suffered from degenerative arthritis of his lumbar spine which was unrelated to his service in the Persian Gulf. Pursuant to the Board's April 2015 remand, the Veteran received another VA examination in April 2017. The examiner determined that the Veteran's claimed low back disability is less likely than not incurred in or caused by service. The examiner provided the following remarks: The Veteran's current back condition, diagnosed as degenerative disc disease, is the underlying etiology of the Veteran's symptoms at this time. The Veteran does not have a chronic clinically identifiable joint and/or muscle pathology that is at least as likely as not of origin during, or in some way the result of the Veteran's period or periods of active military service, to include the Persian Gulf, in this examiner's opinion. The Veteran's current DDD of the lumbar spine is less likely as not a result of or due to the Veteran's initial period of active military service from 2/1968 to 2/1972. The currently diagnosed DDD of the lumbar spine is a degenerative condition that is most likely due to the effects of aging and wear and tear on the spine. An addendum opinion was later obtained in April 2018. The examiner provided the following remarks: STRs reveal in 1969 the Veteran suffered a fall and was [diagnosed] with a contusion of the low back. He was treated conservatively and went on to serve full duty for 30 plus years. The Veteran's back was never an issue which stopped him from retaining his position with the reserves or entering active duty from Feb. 3, 1991 to June 10, 1991. Exam documented in Jan 4, 1972 contusion of low back. Reserve retention physical on May 4, 1976 is silent for a low back condition. Retention physical on Sept. 1982 silent for a low back condition. Separation exam dated June 21, 1991 documents low back pain. The Veteran suffered a fall in 1969 and sustained a contusion to his low back. There is no evidence in records provided for review to support the Veteran had a chronic low back condition. A contusion is of the muscle whereas the condition the Veteran currently has is of the bone. The contusion sustained in 1969 is not physiologically or pathologically the cause of the Veteran's current low back condition as this condition is one of which occurs with the nature progression of aging. Therefore, the Veteran's current pathology of his low back condition is in no way caused by the contusion he sustained in 1969. The contusion resolved with conservative treatment as evidenced by records being silent for a chronic back condition from 1991 until 2011 when the Veteran himself admits he was told by Social Security Disability to seek medical care for a low back condition. He also admits to not seeking medical treatment due to pain caused by a low back condition but rather because he was directed to do so by the Social Security Disability department. The current low back condition was less likely than not caused by the contusion sustained in 1969. Pursuant to the Board's July 2020 remand, another addendum opinion was obtained in September 2020 from a nurse practitioner. The examiner again determined that the Veteran's claimed low back disability is less likely than not attributable to service. The examiner provided the following rationale: The veteran's claimed low back condition, currently diagnosed as chronic low back condition in 2010, due to degenerative disease of the spine, is less likely as not caused by the claimed in-service injury, reported to an acute injury resulting from a "fall down stairs in 1969" and diagnosed with a "contusion" at that time. The "contusion" completely resolved without residual, following conservative treatment, per review of the medical documentation, and the veteran was able to continue service with full duty for an additional several decades. The veteran successfully passed subsequent physical exams and retained his position in the U.S. Coast Guard where he functioned without any restriction in physical duty. A "contusion" is completely unrelated to the current chronic low back condition diagnosed as "degenerative arthritis of the lumbar spine." A contusion involves the soft tissue structures, whereas, degenerative arthritis of the spine involves the boney structure of the back. In March 1991, the veteran was diagnosed with a "back strain," that is completely unrelated to the currently diagnosed chronic degenerative disease of the spine diagnosed in 2010. The "back strain" in 1991 is an acute injury, as is a contusion diagnosed in 1969, and both of these injuries involve soft tissue structures, such as muscles, ligaments, tendons, and are completely unrelated to the current diagnosis of the low back, involving degeneration of the boney structure, known as the spine, as opposed to soft tissue structures that are injured in a strain, sprain, or contusion. The veteran's acute back contusion in 1969, and back strain in 1991, appear to have resolved w/o residual, per review of medical evidence, as the veteran continued in his position in private employment and in the U. S. Coast Guard without physical limitation of any kind following resolution of the acute injuries in 1969 and 1991. The medical evidence has been reviewed, and confirms that the veteran did not incur a chronic condition of the back due to his military service. Of note, a Report of Medical Examination in 2000 remains silent for an acute and/or chronic condition of the BACK. The Veteran remained capable of functioning in a physically demanding work environment in the field of HVAC (installing heating and AC systems) following separation from service, as noted in documentation dated 10/27/2011 signed by Dr. [S.]. Medical treatment records do not substantiate the existence of a chronic back condition prior to 2010, as medical evidence remains silent for ongoing treatment for a chronic back condition. The veteran's endorsement of frequent back pain over the years is respectfully acknowledged, and considered. However, it is well known and recognized by medical scientists, healthcare personnel, and primary care providers and back specialists, that back pain is a common complaint by individuals, and results from a variety of underlying etiologies, ranging from improper body mechanics when lifting, to degenerative conditions due to the effects of aging and wear and tear on the spine, and even to osteoporosis. In a review of the literature, it is noted that the experts at the Mayo Clinic report that "back pain is one of the most common reasons people go to the doctor or miss work, and is the leading cause of disability worldwide," regardless of service in the U.S. Military. The Mayo clinic experts explain that "bulging or ruptured disks" are commonly identified findings on xray imaging and are "often found incidentally....." It is well known and recognized by the medical experts/community, that "as we get older, the disc's start to dry out and no longer cushion the bones. Without the cushioning of theses, the nerve roots or spinal cord (or both) start to get pinched or pressured. This condition is call aging degeneration or disc degeneration," according to the medical reports issued by Cedars-Sanai. In 2010, at the age of sixty one, the veteran was diagnosed with degenerative disease of the lower spine, noted on imaging as a bulging disc at the spinal level of lumbar 5 - sacrum 1 disk. As reported by the experts at the Mayo Clinic, the Cedars-Sinai organization, and a myriad of other experts, degenerative disease of the low back occurs with the effects of aging. In fact, the Spine-Health experts report that "after a patient reaches 60, some level of disc degeneration is a normal finding on an MRI scan, rather than the exception." Degenerative disease of the spine does not result from a contusion or sprain/strain that occurs decades earlier that resolved without residual and required no ongoing treatment. Following a thorough review of all medical evidence and consideration of veteran's self-report(s), it remains clear that there is no correlation between the acute injury(s) in 1969 and 1991 that involved soft tissue of the back that resolved w/o residual and required no ongoing evaluation and/or treatment over the following decades following separation from service, and the current low back condition that involves the boney structure of the back, known as the spine, diagnosed as degenerative disc disease, that is commonly associated with the effects of normal aging. Therefore, it is this examiner's opinion, based on the veteran's STRs, Medical Report of Examination, statements and medical evidence in VBMS, previous physical examinations, documentation of veteran's post-military private sector activity in employment, and evidence reviewed per REMAND request, that the veteran's current diagnosis of a LOW BACK condition, is less likely as not (less than 50 % probability) to have onset, or began in, or is otherwise the result of military service, to include the physical activities the Veteran engaged therein. After weighing the evidence, the Board concludes that the more probative evidence is against the Veteran's claim. VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013). However, "once the [appellant] raises a challenge to the competency of the medical examiner, the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner's qualifications." Francway v. Wilkie, 940 F.3d 1304, 1308 (2019). There is no dispute that the Veteran's previous representative expressly raised a challenge to the September 2020 VA examiner's qualifications and the fact that she is a nurse practitioner. See September 2021 Argument. Accordingly, the Board is required to "make factual findings regarding the qualifications and provide reasons [or] bases for concluding whether the medical examiner was competent to provide the opinion." Id. To that end, the Veteran alleged that the examination report is inadequate because it was conducted by a family nurse practitioner and should have been conducted by an orthopedic specialist. However, the argument that the examination is entitled to no probative weight because it was issued by a nurse practitioner is not persuasive. The Veteran has failed to demonstrate, by evidence other than mere allegation, that the Board cannot rely on the examiner's opinion. See Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007) (a nurse's opinion provided within the scope of his or her training is competent medical evidence). There is absolutely no legal requirement that medical examinations only be conducted by physicians. See, e.g., Goss v. Brown, 9 Vet. App. 109, 114 (1996) (recognizing that nurses' statements regarding nexus were sufficient to make a claim well grounded); Williams v. Brown, 4 Vet. App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical testimony and requiring the Board to provide reasons or bases for finding those opinions unpersuasive). There is no evidence that would tend to show that the VA examiner was not competent and qualified to examine the Veteran and provide an opinion. In light of the above, the Board determines that a preponderance of the evidence shows that the Veteran's low back disability was not incurred in or aggravated by service. In particular, the Board finds the reasoning of the September 2020 VA examiner highly probative as she indicated a detailed review of the evidence, provided fully supported rationale consistent with the evidence, and considered the Veteran's claims regarding his condition and onset. The September 2020 VA examiner stated that the Veteran's 1969 in-service low back contusion was an acute injury that resolved by discharge. The examiner also noted that the Veteran continued to work in a physically demanding job without complaints of back pain until approximately 2010. Importantly, the examiner acknowledged the Veteran's complaints of back pain since service, but explained that the medical record was silent as to treatment for a back-related injury until many years after service, when the Veteran was 61 years old. Essentially, the examiner attributed the Veteran's low back disability to the normal aging process and stated that "Degenerative disease of the spine does not result from a contusion or sprain/strain that occurs decades earlier that resolved without residual and required no ongoing treatment." The Board emphasizes that there are no opinions to the contrary of record. In sum, the most probative evidence of record is against showing that the Veteran's low back disability is related to service. In making this decision the Board notes that the Veteran is competent to report back pain and the circumstances surrounding such. However, he is not competent to provide an etiological opinion, as this requires complex medical knowledge and training. There is otherwise no evidence indicating degenerative arthritis within one year of separation from service, nor is there evidence, aside from the Veteran's assertions and the fact that there are no medical records documenting a clinical diagnosis until approximately 2011, of a continuity of symptomatology since service. 38 C.F.R. §§ 3.307, 3.309. The Board reiterates that the September 2020 examiner acknowledged the Veteran's complaints of back pain since service, but these lay statements were reconciled by the lack of documentation in his medical records. The examiner also stated that the low back disability is a result of the normal aging process. Therefore, the claim 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. 38 U.S.C. § 5107. 2. Entitlement to service connection for a headache disorder as aggravated by service-connected tinnitus As noted above, the Court found that found that the Veteran raised no argument as to the portions of the Board's July 2018 decision that denied entitlement to a headache disorder on a direct basis, as caused by service-connected tinnitus, or as due to an undiagnosed illness. Therefore, those theories of entitlement will not be addressed. In other words, the issue of entitlement to service connection for headaches as aggravated by service-connected tinnitus remains on appeal. Initially, the Board observes that the Veteran's June 1991 separation examination is silent as to any complaints of or treatment for headaches. The Veteran received a VA examination in April 2012. The examiner diagnosed the Veteran with tension headaches. Curiously, the examiner noted that the Veteran had "not been diagnosed" with any type of headache condition. Pursuant to the Board's April 2015 remand, another VA examination was performed in April 2017. The examiner opined that the Veteran's headache condition is less likely as not proximately due to or the result of or aggravated by tinnitus. Instead, the examiner explained that tension headaches are a common disorder, which are due to the effects of stress, eye strain, neck pain, sunlight, and a variety of underlying etiologies. It was also noted that stress is the most common cause of tension-type headaches and can trigger other types of headaches or make them worse. Pursuant to the Board's July 2020 remand, an addendum opinion authored by a nurse practitioner was obtained in September 2020. The examiner found that the Veteran's headache disorder was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner provided the following remarks: The veteran's headache condition, is less likely as not aggravated by the veteran's service connected tinnitus, in this examiner's opinion. Tension headaches, per review of the literature, are believed due to the effects of stress, eyestrain, neck pain, sunlight, and a variety of underlying etiologies. Tension headaches come and go, and can be treated with conservative measures (Mayo clinic.org). Harvard Univ. experts explain that tension headaches they "from changes in how the nerves of the head, neck and shoulders sense pain. They are also caused by changes in the brain's interpretation of the pain signals sent from the muscles in the head and neck." This mechanism of action that underlies the tension headache symptoms is completely unrelated to tinnitus. "Tinnitus is the perception of noise or ringing in the ears. A common problem, tinnitus affects about 15 to 20 percent of people. Tinnitus isn't a condition itself - it's a symptom of an underlying condition, such as age-related hearing loss, ear injury or a circulatory system disorder," reports the experts (Mayo clinic.org). These experts report some symptoms associated with tinnitus, however, headache is not included, in a review of the literature as being a secondary condition, nor is a headache condition a known or recognized condition that is "aggravated" by tinnitus. The medical literature remains silent for an association between the diagnosis of tinnitus and aggravation of a tension headache condition. Therefore, this examiner's opinion, based on a review of the medical evidence, veteran's reports, previous examinations, and reports included in VBMS and information reviewed per REMAND request, that the veteran's tension headache is less likely as not (less than 50% prob) aggravated by the veteran's SC tinnitus. After weighing the evidence, the Board concludes that the more probative evidence is against the Veteran's claim. Again, the Board acknowledges the contention that the September 2020 VA addendum is inadequate because it was authored by a nurse practitioner. However, as discussed in the previous section, the Veteran has offered no argument besides mere allegations that the examination report is inadequate for rating purposes. Simply put, there is no evidence to suggest that the VA examiner, who is a nurse practitioner, is not competent and qualified to review the Veteran's claims file and provide an etiological opinion. The Board affords the April 2017 and September 2020 VA examination reports substantial probative weight. Each examiner indicated that they had reviewed the entirety of the Veteran's electronic claims file and accurately synthesized the Veterans medical history. Here, the April 2017 examiner determined that the Veteran's headache condition is less likely as not proximately due to or the result of or aggravated by tinnitus. The examiner instead attributed the Veteran's tension headaches to stress, neck pain, or other various etiologies. The September 2020 VA examiner affirmed the April 2017 VA examiner's findings and stated that headaches are "not included, in a review of the literature as being a secondary condition, nor is a headache condition a known or recognized condition that is 'aggravated' by tinnitus. The medical literature remains silent for an association between the diagnosis of tinnitus and aggravation of a tension headache condition." The Board observes that there are no medical records, opinions, or other evidence of record that tie his claimed headache disorder to service-connected tinnitus. In this case, the Board does not find the Veteran competent to provide an opinion regarding his claim for secondary service connection based on aggravation as this question is of the type that the courts have found to be beyond the competence of lay witnesses. However, a medical issue like the one at hand requires specialized training for a determination as to diagnosis and causation. It does not lend itself to a lay opinion as to etiology. The statements of the Veteran cannot be accepted as competent medical evidence. For the above reasons, the Veteran's claim 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. 38 U.S.C. § 5107. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.