Citation Nr: 21013025 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-07 207 DATE: March 8, 2021 ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI), previously claimed as a cerebral condition. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for bilateral lower extremities radiculopathy as secondary to the claimed back disability. 6. Entitlement to service connection for bilateral lower extremities neuropathy as secondary the claimed back disability. 7. Entitlement to a total rating for compensation based on individual unemployability (TDIU). ORDER Entitlement to service connection for TBI, previously claimed as a cerebral condition is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for bilateral lower extremities radiculopathy as secondary to the claimed back disability is denied. Entitlement to service connection for bilateral lower extremities neuropathy as secondary the claimed back disability is denied. Entitlement to a TDIU is denied. FINDINGS OF FACT 1. The Veteran does not have, nor has he had at any time during the pendency of the appeal, a current diagnosis of TBI or residuals thereof. 2. A back disability was not shown in service or for many years thereafter, and has not been shown to be related to service. 3. Hearing loss was not shown in service or for many years thereafter, and has not been shown to be related to service. 4. Tinnitus was not shown in service or for many years thereafter, and has not been shown to be related to service. 5. The Veteran does not have, nor has he had at any time during the pendency of the appeal, a current diagnosis of bilateral lower extremities radiculopathy. 6. The Veteran does not have, nor has he had at any time during the pendency of the appeal, a current diagnosis of bilateral lower extremities neuropathy. 7. The Veteran is not service connected for any disabilities and therefore it cannot be found that service-connected disabilities preclude him from obtaining and maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI have not been met or approximated.  38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017).  2. The criteria for service connection for a back disability have not been met or approximated.  38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017).  3. The criteria for service connection for hearing loss have not been met or approximated.  38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017).  4. The criteria for service connection for tinnitus have not been met or approximated.  38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017).  5. The criteria for service connection for bilateral lower extremities radiculopathy have not been met or approximated.  38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017).  6. The criteria for service connection for bilateral lower extremities neuropathy have not been met or approximated.  38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017).  7. The criteria for service connection for TDIU have not been met or approximated.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from August 1961 to June 1963. This case comes before the Board of Veterans’ Appeals (Board) on appeal of May 2013 and February 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. When this case was most recently before the Board in May 2020, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). That is, the RO undertook all appropriate effort to obtain the Veteran’s service treatment records for his period of service from August 1961 to June 1963. The Veteran was notified in January 2021 that his records were unavailable for review and that further attempts to obtain the records would be futile. The Veteran submitted correspondence in the same month, stating that he had no other information to submit and requested that his case be returned to the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a) (2) (West 2014). Duties to Notify and Assist The Veteran has not raised any argument(s) with respect to the adequacy of notice and assistance. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the appeal may be considered on the merits. Service Connection Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).  In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).  Service connection is available for a disease or disability that is proximately caused by a service connected disease or disability; and for the aggravation of a non-service connected disability by a service connected disease or disability.  38 C.F.R. § 3.310 (2017).  Certain chronic diseases may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty.  38 C.F.R. § 3.309.  Pertinent to the Veteran’s appeal, tinnitus is a chronic disease listed under 38 C.F.R. § 3.309 (a)(2017); therefore, the provisions of 38 C.F.R. § 3.303 (b)(2016) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). However, as outlined below, the Veteran reported to the August 2012 VA examiner that his tinnitus began five years prior to the examination and that he could not indicate the circumstance of the onset. As such, service connection on a presumptive basis is not warranted.  The Veteran’s other claimed disabilities are either not considered to be “chronic diseases” under 38 C.F.R. § 3.309 or did not manifest to a compensable degree within one year of separation from active duty.  Therefore, service connection on a presumptive basis is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Hickson Element (2) Discussion At the outset, the Board notes that the Veteran’s service treatment records consist solely of his June 1961 preinduction examination, immunization record, and undated separation examination. However, his DD Form 214 shows that he received a sharpshooter rifle M-1 qualification and that he served foreign and/or sea service for one year and three days in the United States Army Pacific (USARPAC). In a November 2016 statement, translated in April 2018, the Veteran asserted that he served in Thailand for one year. He stated that it took seven days to travel there, during which he endured loud engines (one of which caught on fire.) He also stated that he was involved in an accident in a military jeep, hitting his back on the vehicle’s rooftop. He stated that he was hospitalized for two weeks. As stated above, the Veteran’s complete service treatment records are unavailable. The Board again notes that when service records are unavailable through no fault of the Veteran, VA has a heightened duty to assist. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare, 1 Vet. App. 365, 367. The Board’s analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The service treatment records (the separation examination report and corresponding medical history) do not contain any documentation of injuries to the nor is there any notation of a motor vehicle accident in medical or personnel records. The Veteran’s service discharge examination and report of medical history are undated but another document indicates that the final examination in service was conducted in May 1963. The separation examination had completely normal results with no noted complaints or history regarding the claimed conditions. The Veteran himself specifically indicated on the report of medical history that he was in good health and had no complaints. The Board find that Hickson element (2) is at least arguably met for the claims of service connection for hearing loss and tinnitus as the Veteran received a sharpshooter rifle M-1 qualification. However, Hickson element (2) is not met for the other claimed disabilities on appeal: TBI, a back disability, nor bilateral lower extremities radiculopathy and neuropathy; and these claims fail in this regard. However, for the sake of thoroughness, the Board will continue the analysis below. TBI The Board finds that a competent diagnosis of TBI has not been rendered in this case.  Therefore, Hickson element (1) is not met, and the claim must be denied.  The Veteran submitted a private opinion in May 2016 in which the examiner stated that he suffered multiple body traumas during active duty. The examiner listed medical diagnoses to include TBI. The examiner stated that the Veteran presented with neurological, severe musculoskeletal, and psychiatric disorders which were more probable than not secondary to his military service performance. The Veteran was afforded a VA examination in May 2017 in which the examiner stated that no evidence found in the claims file supported a TBI. The examiner stated that the record was silent for the accident that the Veteran claimed caused a TBI. An addendum VA opinion was obtained in November 2019 in which the examiner stated that she sustained that the Veteran did not have a TBI during the active military service; there was no evidence supporting this diagnosis. The examiner stated that the Veteran’s life after his release from active service was not impaired by any possible sequela. In this case, the Board does not attach probative weight to the private May 2016 opinion. The opinion is based on an oral history provided by the Veteran and not a review of the limited service treatment records and post-service treatment records. It does not appear that the May 2016 clinician conducted a physical examination. The May 2016 clinician offered no medical rationale. The Board notes that greater weight may be placed on one physician’s opinion than another’s depending on factors such as the reasoning employed by the physicians. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician’s opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). As such, the private clinician’s statements are not an adequate basis upon which to determine entitlement to service connection. The VA examiners noted the lack of relevant service treatment records related to the claimed accident; however, their opinions were not based entirely upon this lack of evidence. The examiners also determined that the Veteran’s post-service records did not show any impairment by any possible sequela. The Board attaches significant probative value to the VA examiners’ opinions as they are well-reasoned, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. As such, the Board finds that the Veteran has not been diagnosed with TBI during the pendency of these claims; accordingly, the claims fail as Hickson element (1) is not met. Based upon review of the evidence above, the Board finds the Veteran’s claim for service connection for TBI must fail because the most recent medical evidence does not indicate a current diagnosis of this condition. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans’ benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Back Disability VA treatment records and examinations show diagnoses to include lumbosacral strain. As such, Hickson element (1) is met for this claim. The Veteran submitted a private opinion in February 2012 in which the examiner stated that he injured his back during active service during a car accident where his vehicle turned over. The examiner stated that it was at least as likely as not that his back condition was service connected secondary to his incident while in service. The Veteran submitted a private opinion in May 2016 in which the examiner stated that he suffered multiple body traumas during active duty. The examiner listed medical diagnoses to include chronic low back pain. The examiner stated that the Veteran presented with neurological, severe musculoskeletal, and psychiatric disorders which were more probable than not secondary to his military service performance. The Veteran was afforded a VA examination in May 2017 in which the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that medical records failed to show evidence of lumbar injuries during service and subsequent treatments for it. The Veteran was afforded a VA examination in November 2019 in which the examiner stated that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that she concurred with the previous opinion in May 2017. The examiner stated that available service treatment records were silent for complaints, evaluation, and/or treatment related to the now claimed lumbar condition during active duty or within five years after his discharge from service. The examiner stated that the present X-ray findings were related to the normal aging process and not related to active duty service. In this case, the Board does not attach probative weight to the private clinicians’ statements of record. Both opinions are based on an oral history provided by the Veteran and not a review of the limited service treatment records and post-service treatment records. It does not appear as though either of the clinicians conducted a physical examination. As such, the private clinicians’ statements are not an adequate basis upon which to determine entitlement to service connection. The Board notes that greater weight may be placed on one physician’s opinion than another’s depending on factors such as the reasoning employed by the physicians. Gabrielson, 7 Vet. App. 36, 40. Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis, 1 Vet. App. 66; the Board is free to assess medical evidence and is not obligated to accept a physician’s opinion. Wilson, 2 Vet. App. 614. As such, the private clinician’s statements are not an adequate basis upon which to determine entitlement to service connection. The VA examiners noted the lack of relevant service treatment records related to the claimed accident; however, their opinions were not based entirely upon this lack of evidence. The examiners also determined that X-ray findings were related to the natural aging process. The Board attaches significant probative value to the VA examiners’ opinions as they are well-reasoned, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. Therefore, a nexus between service and the Veteran’s back disability cannot be established. The criteria of Hickson element (3) are not met, and the claim must be denied.  Hearing Loss and Tinnitus VA treatment records and examinations show diagnoses to include bilateral hearing loss per VA regulations and tinnitus. See 38 C.F.R. § 3.385. As such, Hickson element (1) is met for these claims. The Veteran submitted a private opinion in February 2012 in which the examiner stated that he was exposed to the constant noise of a laundry machinery while in service which was more probable than not the cause of his hearing problems. The examiner stated that it was at least as likely as not that his hearing problem and tinnitus were service connected secondary to noise exposure while in service. The Veteran was afforded a VA examination in August 2012 in which the examiner opined that the hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner stated that there was no medical evidence in the claims file for the active duty service that indicated hearing loss. At the enlistment examination, the hearing test performed was a whispered voice test that was not a reliable test to identify the presence of hearing loss. There was no evidence of complaints of hearing loss or tinnitus in the claims file for more than 49 years after service. Therefore, it was highly probable that the current evaluation showed a bilateral hearing loss that was due to presbycusis or hearing loss expected as a normal aging process. The examiner noted that the Veteran was 18 years old at enlistment with no history of ear/hearing related health problems or trauma; no hearing loss was expected under those circumstances. The examiner noted that the Veteran reported that his tinnitus began five years prior to the examination and that he could not indicate the circumstance of the onset. The examiner stated that it was reasonable to conclude that hearing loss and tinnitus were less likely than not related to military noise exposure. The Veteran was afforded a VA examination in November 2019 in which the examiner stated that the hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner stated that no ears complaints were made at the separation examination; no other evidence or documents of medical treatment evaluations were found. The examiner stated that records were silent as to any complaints of hearing loss or evidence of audiological evaluation until 2012, in which bilateral hearing loss was first identified, over 49 years after active military service. The examiner stated that medical literature did not support that a delayed onset or retroactive effect was expected to be evidenced as a hearing loss so many years after being exposed to military noise. Therefore, based on the available evidence of hearing tests conducted during service, and Veteran’s current audiological assessment, the association between hearing loss and noise exposure or other event during service could not be assumed to exist. The examiner stated that it was highly probable that hearing loss evidenced was due to the combined effect of positive occupational noise exposure, as an presbycusis, or hearing loss expected as a normal aging process. The examiner stated that based on the above, hearing loss was less likely as not related to hazardous noise exposure while in active military service. The examiner stated that the Veteran had a diagnosis of clinical hearing loss, and his tinnitus was at least as likely as not a symptom associated with the hearing loss. In this case, the Board does not attach probative weight to the February 2012 private clinician’s statements of record. The opinion is based on an oral history provided by the Veteran and not a review of the limited service treatment records and post-service treatment records. It does not appear as though the clinician conducted a physical examination. As such, the private clinician’s statements are not an adequate basis upon which to determine entitlement to service connection. The Board notes that greater weight may be placed on one physician’s opinion than another’s depending on factors such as the reasoning employed by the physicians. Gabrielson, 7 Vet. App. 36, 40. Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis, 1 Vet. App. 66; the Board is free to assess medical evidence and is not obligated to accept a physician’s opinion. Wilson, 2 Vet. App. 614. As such, the private clinician’s statements are not an adequate basis upon which to determine entitlement to service connection. The VA examiners noted the lack of relevant service treatment records; however, their opinions were not based entirely upon this lack of evidence. The examiners also determined that it was highly probable that hearing loss evidenced was due to the combined effect of positive occupational noise exposure, as an presbycusis, or hearing loss expected as a normal aging process. Moreover, the VA examiner found that tinnitus was related to hearing loss. As hearing loss is not service-connected, secondary service connection for tinnitus is not warranted. See 38 C.F.R. § 3.310 (2017).  The Board attaches significant probative value to the VA examiners’ opinions as they are well-reasoned, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. Therefore, a nexus between service and the Veteran’s hearing loss and tinnitus cannot be established. The criteria of Hickson element (3) are not met, and the claims must be denied.  Bilateral Lower Extremities Radiculopathy and Neuropathy The Board finds that a competent diagnosis of bilateral lower extremities radiculopathy nor neuropathy has been rendered in this case.  Therefore, Hickson element (1) is not met, and the claims must be denied.  The Veteran was afforded a VA examination in May 2017 in which the examiner stated that physical evaluation did not show evidence of neurological deficits; no evidence of neuropathies or radiculopathies. The Veteran was afforded a VA examination in November 2019 in which the examiner stated that there was no objective evidence of the claimed lumbar radiculopathy or peripheral neuropathy per the current examination and available records. As such, the Board finds that the Veteran has not been diagnosed with bilateral lower extremities radiculopathy nor neuropathy during the pendency of these claims; accordingly, the claims fail as Hickson element (1) is not met. Based upon review of the evidence above, the Board finds the Veteran’s claims for service connection for bilateral lower extremities radiculopathy nor neuropathy must fail because the most recent medical evidence does not indicate current diagnoses of these conditions. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans’ benefits. Brammer, 3 Vet. App. 223, 225; Rabideau, 2 Vet. App. 141, 144. The Board acknowledges that the Veteran is competent to testify as to his beliefs that service connection is warranted for his claimed disabilities on appeal.  However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  While the Veteran is competent to report what he has experienced, he is not competent to ascertain the appropriate diagnosis nor etiology of any current condition, as the causative factors for such are not readily subject to lay observation.  Therefore, the Veteran’s claims are outweighed by the competent and probative medical opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds that service connection is not warranted for any of the claimed conditions. Despite the lack of documentation of a vehicle accident during active service, the Veteran is competent to describe such an accident and his resulting symptoms. Further, the lack of complaints, symptoms, treatment, or diagnosis in service cannot on its own support a service connection denial, especially given that there is an indication that the entirety of the service treatment records are not of record. However, the Board finds the Veteran’s assertions that the claimed conditions were the result of the accident and that symptoms continued to the present not to be credible. He himself denied any relevant symptomology at separation. That contemporaneous denial of pertinent symptoms represents more credible and probative evidence than the Veteran’s statements made many years after discharge and in association with a claim for monetary benefits. If any relevant injuries resulted from the accident, they appeared to have resolved by separation by the Veteran’s own contemporaneous account. In reaching all determinations in this decision, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). TDIU A total rating based on unemployability due to service-connected disabilities may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is not service-connected for any disability. Consequently, a TDIU is not warranted, and the claim must be denied for lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.