Citation Nr: A21020682 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 210809-177302 DATE: December 30, 2021 ORDER Entitlement to service connection for lumbar spine degenerative joint and disc disease is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for left hip tenosynovitis is remanded. Entitlement to service connection for right hip tenosynovitis is remanded. Entitlement to service connection for cervical spondylosis is remanded. FINDINGS OF FACT 1. The Veteran's lumbar spine degenerative joint disease was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had tinnitus at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine degenerative joint and disc disease due to service or service-connected right knee disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1967 to September 1968, including combat service in the Republic of Vietnam. In April 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection most recently addressed in a May 2019 rating decision. In October 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window. In the August 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability and includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). If a veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). The provisions of 38 U.S.C. § 1154 (b) do not establish a presumption of service connection for a combat veteran, but ease or lessen the combat veteran's burden of proof for demonstrating the occurrence of some in-service incident to which the current disability may relate. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Wade v. West, 11 Vet. App. 302, 304-05 (1998). The Veteran's military personnel records confirm he served in Vietnam, but do not reflect combat service. The Veteran was awarded the combat infantry badge. Based on the foregoing, the Veteran is considered a 'combat Veteran.' 1. Entitlement to service connection for lumbar spine degenerative joint and disc disease The Veteran seeks service connection for a low back disability. He contends that his low back disability is related to injuries from combat in Vietnam. Alternatively, he contends that his low back disability is related to his service-connected right knee disabilities. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran reported that he was injured during combat. While such a back injury is not documented in the Veteran's service medical records, the Board notes the Veteran's report the injury was incurred in combat and finds the reports otherwise consistent with the circumstances of the Veteran's service. Service treatment records are silent for complaints, diagnosis, or treatment of a low back disorder. The September 1968 report of medical examination at separation indicated normal spine and other musculoskeletal clinical findings. The Veteran denied back trouble of any kind on his September 1968 report of medical history. The Veteran was afforded a VA examination in November 1968 at his separation. The Veteran reported trouble with his knee since Vietnam. The examination report was silent for musculoskeletal complaints or diagnosis unrelated to the Veteran's right knee complaint. The Veteran submitted a letter from Dr. J.C. in support of his claim dated April 2009. He opined that the Veteran's back pain was likely to be related to his military service. The Veteran submitted a lumbar spine conditions disability benefits questionnaire (DBQ) dated January 2019 in support of his claim. The Veteran reported low back pain and spasms. He reported that during active service he jumped out of a helicopter and hit the ground hard. He indicated that the pain started a few months after his jump. While the Veteran's history was noted, no medical records were reviewed by the clinician and no specific nexus opinion was offered. The Veteran was afforded a VA examination in September 2020. The Veteran reported that his condition began in 1968 when he jumped out of a helicopter and injured his back, neck, and knees. He reported pain and stiffness in his neck, back, hips and knees. The examiner diagnosed lumbosacral strain and lumbar arthritis. The examiner opined the Veteran's back condition was not at least as likely as not related to service. He explained that the separation examination was negative for a lower back condition. The examiner found that there was no clinical correlation between the injury the Veteran reported happening in service and his current back disability. Therefore, he concluded the back condition was less likely related to service or the result of his right knee disabilities. In an October 2020 addendum opinion, the examiner clarified the Veteran's lumbar degenerative arthritis is less likely related to his service-connected knee conditions. He noted that the Veteran has a chronic history of obesity that is more likely the cause of his lower back condition. There was no documentation of a lower back condition as it related to his right knee condition. Thus, the examiner concluded the Veteran's lumbar disability is less likely than not the result of his right knee disabilities. The Board concludes that, while the Veteran has a current diagnosis of lumbar degenerative joint disease, and evidence shows that an in-service back injury occurred, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of lumbar degenerative joint and disc disease began during service or is otherwise related to an in-service injury, event, or disease. In a September 2020 opinion and an October 2020 clarifying addendum opinion, the VA examiner opined that the Veteran's lumbar disability is not at least as likely as not related to an in-service injury, event, or disease, including the injury from jumping from the helicopter or from the Veteran's service-connected right knee disabilities. The examiner explained that the Veteran's separation examination was negative for a lower back condition. There was no clinical correlation between the Veteran's in-service injury and his current back complaints. The examiner also noted that the Veteran had a chronic history of obesity, which was more likely the cause of his lower back condition. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner J.C. opined that it was. This opinion is, however, less probative than the VA examiner's opinion. There is no supporting rationale or indication that J.C. reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on the Veteran's self-reported medical history, which is inconsistent with VA treatment records that show the Veteran denied back pain at discharge and had normal clinical examinations in the separation examination and at a subsequent VA disability examination conducted after discharge. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the September 2020 VA examiner's opinion and October 2020 addendum opinion. The Veteran believes his low back condition is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case 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). Consequently, the Board gives more probative weight to the September 2020 VA examination and October 2020 addendum opinion. The Board has considered the Veteran's lay statements. He is competent to relate experiencing back pain during service because it is a readily observable symptom. He is also competent to relate the onset of back pain for the same reason. The Board finds these assertions to be outweighed by his contemporaneous statements made during the separation examination wherein he explicitly denied recurrent back trouble, and the 1968 VA examination which was positive for right knee complaints but silent for any other musculoskeletal issues. Thus, his statements do not establish the onset of such symptomology during service. The Board has considered whether service connection is warranted based on a continuity of symptomatology framework. 38 C.F.R. § 3.303 (b). The credible evidence does not show that either disability was noted during service or during the presumptive period. The Veteran's favorable statements in support of such a finding are determined to be outweighed by his contemporaneous statements made during his separation examination and 1968 VA disability examination. Given that neither disability was noted during service or during the presumptive period, the continuity of symptomatology framework is not for application. The Board recognizes that the Veteran is a combat veteran. 38 U.S.C. § 1151; 38 C.F.R. § 3.304 (d). This does not absolve him of the requirement of demonstrating a causal nexus between his current disabilities and active service. In sum, the evidence weighs against a finding that the current lumbar degenerative joint and disc disease were incurred in, or are otherwise related to, active military service, to include secondary to service-connected right knee disability or a combat-related injury, which was conceded. As a result, service connection is not warranted. 2. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus. Service treatment records are absent of any complaints, diagnosis, or treatment for tinnitus. Post-service medical records from September 2012 show the Veteran reported intermittent tinnitus a couple times a month. The Veteran was afforded a VA examination in September 2020. The VA audiology examination report indicates that the Veteran denied tinnitus symptoms. Based on the examination, the examiner concluded that the Veteran did not have recurrent tinnitus. Based on consideration of all evidence of record, the Board finds the Veteran does not have a current diagnosis of tinnitus. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking." Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). The symptoms of tinnitus are within the competence of a lay person to report. Charles v. Principi, 16 Vet. App. 370, 374 (2002); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (Lay evidence can by competent and sufficient to establish a diagnosis if the layperson is competent to identify the medical condition.). The Veteran has reported that he has ringing in his ears. He is competent to relate such a symptom and his assertion would generally be sufficient to establish a current diagnosis of tinnitus. In this instance, however, clarifying questions asked by a VA examiner during the September 2020 VA examination revealed that the Veteran denied tinnitus. The examiner determined that the Veteran does not and has not had any instances of tinnitus during the appeal period. While the Veteran is certainly competent to report the presence of tinnitus. However, the Veteran's testimony that his ringing symptoms began shortly after service contradict the statements made to the VA examiner, hence they are not found credible. While the post-service medical record shows the Veteran reported intermittent tinnitus in 2012, these reports are years before the current appeal period and there is no evidence showing current complaints or diagnosis of tinnitus at any time during the appeal. For this reason, entitlement to service connection for a tinnitus disability is denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against the claim; there is no doubt to be resolved. Thus, service connection for tinnitus is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for left hip tenosynovitis is remanded. 2. Entitlement to service connection for right hip tenosynovitis is remanded. 3. Entitlement to service connection for cervical spondylosis is remanded. The Veteran seeks service connection for a bilateral hip disability and cervical spine disability. He contends that his disabilities are related to injuries from combat in Vietnam. Alternatively, he contends that his disabilities are related to his service-connected right knee disabilities. The Veteran was afforded a VA examination in September 2020. The examiner opined that the Veteran's hip and neck conditions were less likely related to his service-connected right knee disability. The examiner did not provide a specific opinion on whether the Veteran's bilateral hip condition or neck condition are related to service on a direct basis. Thus, failure to obtain a complete opinion that addresses all theories of entitlement is deemed predecisional error. Remand is required for addendum opinions concerning a direct theory of entitlement. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hip condition is at least as likely as not related to an in-service combat injury from jumping from a helicopter during active service. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's cervical spine condition is at least as likely as not related to an in-service combat injury from jumping from a helicopter during active service. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, Associate 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.