Citation Nr: 21007470 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-22 717 DATE: February 9, 2021 ORDER Entitlement to service connection for a right thumb and forefinger disability is dismissed. Entitlement to service connection for a right toe disability is dismissed. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a back disability is denied. Entitlement to service connection for sinusitis is denied. REMANDED Entitlement to service connection for essential hypertension is remanded. FINDINGS OF FACT 1. Prior to promulgation of a decision in the appeal, service connection for a right thumb and forefinger disability was granted in a March 2017 rating decision. 2. Prior to promulgation of a decision in the appeal, service connection for a right toe disability was granted in a March 2017 rating decision. 3. The Veteran’s tinnitus was incurred in and due to his time in service. 4. The Veteran’s back disability was not incurred in and due to his time in service. 5. The Veteran’s sinusitis disability was not incurred in and due to his time in service. CONCLUSIONS OF LAW 1. The criteria for dismissal of right thumb and forefinger disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of right toe disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for a back disability have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. 5. The criteria for service connection for a sinusitis disability have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. The Veteran had active service from June 1969 to July 1992. The Veteran had a hearing before the undersigned Veterans Law Judge in March 2020. A transcript has been associated with the file. Dismissed Claims Regarding the Veteran’s claims of service connection for a right thumb and forefinger disability and right toe disability, the RO granted service connection for these disabilities in a March 2017 rating decision. As the full benefit sought on appeal was granted in the March 2017 rating decision, further appellate review is mood. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, in the absence of any justiciable question, the Board does not have jurisdiction over the appeals, and the appeals are dismissed. Service Connection Claims Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence 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 disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus The Veteran contends he has tinnitus that was incurred in and due to his time in service. In his March 2020 hearing, the Veteran said he was an aircraft mechanic for 19 of his 23 years in service and he started getting ringing in his ears when he was in Germany and Japan. The Veteran had an examination for his tinnitus in December 2016. The examiner said the Veteran did not suffer from recurrent tinnitus and that it was less likely than not a result of service. The examiner noted that he had reviewed the Veteran’s file and that the Veteran’s STRs were negative for reports of tinnitus. The examiner acknowledged the Veteran’s MOS was associated with a high risk noise exposure, but there was no evidence indicating acoustic trauma related to service. The Veteran also denied the condition of tinnitus. The Veteran’s military personnel record shows that his MOS was that of tactical aircraft support for over 18 years. The Court has found a lay person competent to identify tinnitus which is a disorder that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to report that he was exposed to loud noise during service. See generally Charles v. Principi, 16 Vet. App. 370, 374 (2002). Once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The Board finds that the Veteran is both competent and credible to say that he had ringing in his ears while in service. The December 2016 examiner, while rendering a negative opinion, also conceded the Veteran’s MOS was associated with a high risk of noise exposure. The Board finds the evidence of the Veteran’s MOS and his testimony that he had ringing in his ears while in service due to the close proximity of his work to airplanes is sufficient to warrant service connection for tinnitus. Therefore, the claim will be granted. Back and Sinusitis Claims The Veteran contends he has a back disability and a sinus disability that were incurred in and due to his time in service. In his March 2020 hearing, the Veteran said while on active duty, the Veteran had to carry heavy tool boxes up when working on the big airplanes and he hurt his back one day and has had trouble with his back ever since due to the wear and tear ever since that injury. The Veteran noted that he was treated in service for his back in 1976 and again in 1986. The Veteran also said he had to sleep on a special bed and take pain killers. The Veteran eventually had to have shots in his back. Regarding his sinusitis, the Veteran said in 1985, he went to sick call for his sinuses and he has had problems ever since and had sinus surgery in Missouri. The Veteran also reported having several sinus infections every year. The Veteran has been diagnosed with a back disability. The Veteran’s STRs also show he was seen in service for a lumbar strain and that he was seen for sinus problems in service. However, on his separation examination, while noting several other lingering concerns, neither the Veteran nor the examiner reported the Veteran had any ongoing back problems or sinus conditions. The Veteran had an examination for his back disability in January 2017. The examiner saw the Veteran in person, reviewed his file, and noted his diagnosis of a back strain. The examiner also noted several relevant service and medical records and the Veteran’s contentions about the etiology of his condition. The examiner opined the Veteran’s back condition was less likely than not incurred in or due to his time in service. The examiner reported the Veteran was seen in 1976 for a back strain, no trauma and that the Veteran separated from service in 1992. In a 1998 clinic record, it was noted a prior history of a herniated disc that was recognized two years prior and that he received epidural injections and had lumbar radiculopathy in 2012. The examiner explained that the lumbar strain the Veteran suffered while in service was not an injury severe enough to result in the development of subsequent degenerative disc disease with radiculopathy. The examiner also stated that since there was a twenty-two year gap between his in service injury and the recurrence of his low back pain, it was not likely that the original injury in service caused his current condition. The Veteran had an examination for his sinusitis in January 2017. The examiner saw the Veteran in person, reviewed his file, and noted his diagnosis of chronic sinusitis. The examiner also noted several relevant service and medical records and the Veteran’s contentions about the etiology of his condition. The Veteran was seen approximately three times for sinus infections while in service. The examiner opined it was less likely than not the Veteran’s sinus condition was incurred in or due to his time in service. The examiner reported that the Veteran’s STRs did not show he had a diagnosis of acute nor chronic sinusitis while in service and that he had a negative skull x-ray in April 1976 that showed normal sinuses. The examiner acknowledged the Veteran complained of sinus problems in 1985, but no diagnosis of sinusitis was made. The examiner also noted the Veteran separated from service in 1992 and that he was diagnosed with chronic sinusitis in 2007. The Board has reviewed the Veteran’s file and considered the Veteran’s statements that his back pain and sinusitis lasted from service to the present. However, all of the evidence must be considered, and the Board finds the January 2017 examinations to be most probative as to the etiology of the Veteran’s back and sinus conditions. The examiners considered the Veteran’s reports of in-service injury and continuing treatment, but found that the type of back injury the Veteran suffered in service would not cause his current problems and that many decades had passed between the Veteran’s time in service and his diagnosis of sinusitis. This does not mean the Veteran did not have sinus issues while in service. Simply stated, it just means that those issues are not related to the ones he is diagnosed with now. Additionally, the Veteran did not mention ongoing back problems in his separation examination while mentioning other problems. It does not appear to be reasonable that the Veteran would mention some ongoing problems but not report others. For these reasons, the claims will be denied. Again, both the service and post-service treatment record provide evidence against these claims, indicating problems that began well after service with no connection to service. Regarding all the above, the Board acknowledges the Veteran’s statements that his disabilities bother him, causing pain and discomfort, and that he continues to seek medical attention for his conditions. However, while the Veteran is competent to report the symptoms of his disabilities, such as ongoing pain, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered the Veteran’s statements and has weighed them against the medical evidence and has found the medical evidence to be the most probative evidence of record, as discussed above, which shows the Veteran’s disabilities are not a result of his time in service. The Board finds the examinations of record to be adequate because the examiners saw the Veteran in person, reviewed his file, considered his statements and contentions, and offered opinions backed by explanations. It is important for the Veteran to understand that the most probative medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his disabilities are due to his time in service. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND The Veteran contends he has hypertension that was incurred in and due to his time in service. In his March 2020 hearing, the Veteran said that he was diagnosed with hypertension while in service and he was scheduled for a week of blood pressure monitoring. The Veteran said this was about four or five years before he retired and in 1988, he went to the doctor. At that time, the Veteran was told he did not have hypertension, but that he did have high blood pressure. The Veteran reported he was taking medication for high blood pressure now and that he had been taking hypertension medicines ever since he was seen for high blood pressure in service. The Veteran’s records indicate he has a past history of hypertension and high blood pressure. However, his service treatment records (STRs) do not show a diagnosis of hypertension. Nor do these records show frequent readings of high blood pressure. Indeed, several blood pressure readings taken during the Veteran’s time in service show normal blood pressure. (See e.g. August 1975, March 1990 STR.) A few records indicate the Veteran had elevated blood pressure. However, these readings appeared to have been taken in conjunction with illness and may not be indications of a hypertension condition. (See e.g. May 1992.) Additionally, the Veteran’s blood pressure reading taken on his separation examination indicates normal blood pressure and while the Veteran mentioned several other conditions on his separation examination, he did not mention any ongoing blood pressure problems. The record does not indicate the Veteran’s hypertension was diagnosed within one year of his separation. Indeed, the medical evidence of record do not show the Veteran began to take blood pressure medication until several decades after his separation from service. However, the Veteran said in his hearing that he was treated at a private medical facility after service for his hypertension. These records are not associated with the Veteran’s file. Therefore, a remand is warranted in order to obtain these records. Additionally, the Veteran has not had an examination for his hypertension. The Board finds that based on the Veteran’s currently diagnosed high blood pressure and treatment, along with his assertion that he was seen in service for high blood pressure and has continued to take medication for this condition, a remand for an examination is warranted. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding VA and private medical records and associate them with the claims file. In particular, efforts should be made to obtain private medical records from the period following the Veteran’s separation from service. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Schedule the Veteran for an appropriate examination for his hypertension. After reviewing the claims file, the examiner should answer the following questions. (a) Is it at least as likely as not (a 50 percent or greater probability) the Veteran’s hypertension had its onset during service, or is otherwise due to service? (b) Is it at least as likely as not the Veteran’s hypertension is proximately due to or aggravated by any of his service-connected disabilities? (c) If the examiner finds the Veteran’s hypertension existed prior to his time in service, the examiner should opine as to the following: Is it at least as likely as not the Veteran’s hypertension was aggravated beyond its natural progression due to his time in service. (Continued on the next page)   The examiner should explain in detail any opinion provided. 3. Readjudicate the issues on appeal. If the determinations remain adverse to the Veteran, she must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.