Citation Nr: 21005335 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-30 759 DATE: February 1, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a thoracic spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT The Veteran’s lumbar spine disability did not have its onset in service or within one year of separation from service and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1975 to May 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims for further development in August 2017 and March 2018. Here, the Board finds that bifurcating the Veteran’s claim of entitlement to service connection for a back injury into separate issues for independent adjudication is the most proper way of handling the appeal. Therefore, the Board has bifurcated the claim into two separate issues, service connection for a lumbar spine disability and service connection for a thoracic spine disability, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record); see also Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion). 1. Entitlement to service connection for a lumbar spine disability is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the presence of a current lumbar spine disability is not in dispute, as the Veteran has been diagnosed degenerative disc disease of the lumbar spine with associated status post lumbar fusion and status post laminectomies. See August 2020 VA examination report. Thus, the first element of service connection is established. Turning to the second element, in-service incurrence of a disease or injury, the Veteran’s service treatment records (STRs) do not identify any complaints, treatment for, or diagnosis of, a lumbar spine disability. While the Board acknowledges that the Veteran reported back pain in-service, these complaints were in regard to his thoracic spine and not his lumbar spine, as also confirmed by the August 2020 VA examiner. See September 1976 STR (back injury with pain in mid-spine region, assessed with acute thoracic spine sprain) and July 1978 STR (back pain located at the base of shoulder blades). To the extent the Veteran generally refers to a “back injury” in his correspondence, the Board finds, when considering the contemporaneous STRs showing that he only sustained injury to his thoracic spine, that his intent was to seek service connection for his documented thoracic spine injury. In any event, were the Board to assume that the Veteran was referencing lower back pain in his correspondence, the Board finds his statements as to in-service lumbar back pain lack credibility. Specifically, the Veteran did not report any lumbar spine issues in his STRs and, perhaps even more critically, when he sought treatment for his lumbar spine disability in 2005, he reported his lumbar spine pain began in 1993 following a post-service work accident. See July 2005 private treatment record. The Board affords more probative value to these more contemporaneous records. As such, element two is not met, and the claim fails on this basis alone. Regarding the last element, nexus, the only competent opinion of record is against the claim. Specifically, the August 2020 VA examiner opined that the Veteran’s lumbar spine disability was less likely related to service. The examiner, who acknowledged consideration of the Veteran’s in-service reports of back pain, emphasized that his STRs were silent for a lumbar spine injury, condition, or diagnosis and instead showed thoracic spine complaints. Rather, the examiner attributed the Veteran’s current lumbar spine disability to a work injury, noting the lack of a diagnosis for more than a decade after service, as well as the fact that post-service treatment records showed a lumbar spine work injury in 1993 with subsequent surgeries as a result of that injury. This opinion is highly probative, as it was rendered after review and consideration of the Veteran’s pertinent medical history and is sufficiently rationalized based on the evidence of record. There is no competent opinion to the contrary. To the extent that the Veteran asserts that his lumbar spine disability is the result of military service, the Board finds that he is not competent to do so, as the determination as to the etiology of such a disability is a complex medical question that is beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, as lumbar spine degenerative disc disease first manifest in 1993, over a decade after service, presumptive service connection for chronic disease is not available. Nor is there any competent and credible evidence of in-service symptoms indicative of lumbar spine degenerative disc disease to allow for service connection based on continuity of symptomatology. Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for a lumbar spine disability. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Initially, the Board observes that the Veteran has been incarcerated since the time of his application for service connection and does not have a scheduled release date (his parole suitability hearing date is tentatively scheduled in 2025). In this regard, the Board notes the duty to assist provisions of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 applies equally to incarcerated and non-incarcerated Veterans. VA has special procedures for handling the scheduling of VA medical examinations for incarcerated veterans. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (providing that the duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement; such individuals are entitled to the same care and consideration given to their fellow non-incarcerated veterans). VA’s duty to assist an incarcerated veteran may include: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). Furthermore, where the RO is unable to arrange an examination for an incarcerated veteran, it must memorialize its efforts to do so. Id. The Board acknowledges that the prior remand directed the RO to obtain medical opinions after finding that the Veteran could not be examined in person. The post-remand record indicates that the RO attempted to schedule the Veteran for VA examinations and when unable to hold those examinations obtained medical opinions in August 2020 (lumbar spine and knee disability) and September 2020 (hearing loss and tinnitus). As to having the Veteran examined at his place of incarceration, VA examination requests were scheduled in April 2019 but then cancelled because the California Department of Corrections and Rehabilitation (CDCR) would not allow Veterans Evaluation Services or contractors access to medical examination rooms. See June 2019 correspondence. Thereafter, in August 2019, CDCR approved outside contractors to conduct examinations. See August 2019 memo; see also August 2020 correspondence. Regarding the VA examination for hearing loss and tinnitus, the coordinator indicated that an audiologist would not be available until October and therefore limited the examination request to only an opinion. See August 2020 VA Form 21-6789. However, there is no indication that any effort was made to arrange for an audiological examination after October 2020, particularly following approval by CDCR. Therefore, the Board finds that another remand is required to afford the Veteran an examination to determine if he has hearing loss for VA disability purposes. 2. Entitlement to service connection for hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. The Board finds that the September 2020 audiologist’s opinion is inadequate, because he relied solely on normal hearing during service with no significant threshold shifts but did not take into account the Veteran’s conceded exposure to acoustic trauma from the high probability of hazardous noise exposure based on his duties as a fire protection specialist. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim); Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that 38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service). Therefore, remand for addendum opinions following audiological examination is needed on remand. 4. Entitlement to service connection for a thoracic spine disability is remanded. As mentioned above, the Board bifurcated the Veteran’s claim of entitlement to service connection for a back injury into two separate issues, including a claim of entitlement to a thoracic spine disability. Given the Veteran’s in-service thoracic spine complaints and reports of back pain, an examination and nexus opinion are needed on remand. 5. Entitlement to service connection for a right knee disability is remanded. The claim of entitlement to secondary service connection for a right knee disability is inextricably intertwined with the requested development on the thoracic spine claim. As such, action on this claim is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Any outstanding treatment records should be secured. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records from the Correctional Training Facility located in Soledad, California. 2. Then schedule the Veteran for a VA examination to determine the nature and etiology of any thoracic spine disability. The entire claims file should be made available to the examiner. All findings should be reported in detail. The RO should consult with prison officials in order to determine whether it is feasible for VA or an associated contract provider to conduct an examination at the prison. If neither is possible, then refer the claims file to an examiner for preparation of an etiological opinion. All efforts to afford the Veteran a VA examination must be documented. Following a review of the claims file, and all evidence obtained during the examination if held, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that any diagnosed thoracic spine disability had its onset in or is otherwise related to service, to include as a result a documented thoracic spine sprain (September 1976) and back pain (July 1978) therein. A complete rationale should be given for all opinions and conclusions expressed. 3. Then schedule the Veteran for a VA examination to determine whether he has a hearing loss disability as recognized by VA, and if so, the nature and etiology of his hearing loss and tinnitus. The entire claims file should be made available to the examiner. All indicated tests should be conducted and all findings reported in detail. The RO should consult with prison officials in order to determine whether it is feasible for VA or an associated contract provider to conduct an examination at the prison. If neither is possible, then refer the claims file to an examiner other than the September 2020 VA audiologist for preparation of an etiological opinion. All efforts to afford the Veteran a VA examination must be documented. Following a review of the claims file, and all evidence obtained during the examination if held, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that hearing loss and tinnitus had their onset in or are otherwise related to service, to include as a result conceded exposure to hazardous noise therein. In addressing this question, the examiner must accept as true that the Veteran was exposed to acoustic trauma during service in conjunction with his duties as a fire protection specialist and determine whether a nexus to service is “medically plausible” based on the same. Please note that the absence of hearing loss pursuant to 38 C.F.R. § 3.385 during service cannot, standing alone, serve as a basis of a negative opinion, and please address the possibility of delayed-onset hearing loss and tinnitus. A complete rationale should be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.