Citation Nr: 21014845 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 11-12 556 DATE: March 15, 2021 ORDER Entitlement to service connection for a low back disability, diagnosed as degenerative joint and disc disease, is granted. Entitlement to service connection for arthritis of the elbows, wrists, hips, ankles, and feet is denied. Entitlement to service connection for residuals of spinal meningitis is denied. REMANDED Entitlement to service connection for arthritis of the cervical spine, right shoulder, hands, and left knee is remanded. Entitlement to a compensable evaluation for left ear hearing loss is remanded. Entitlement to an evaluation in excess of 10 percent for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran has had continuity of symptoms related to his low back since active service. 2. Arthritis of the elbows, wrists, hips, ankles, and feet did not have its onset in service or within a year of service, and is not otherwise the result of a disease or injury incurred in service. 3. The Veteran’s spinal meningitis did not have its onset in service and is not otherwise the result of a disease or injury incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability, diagnosed as degenerative joint and disc disease, have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307. 3.309. 2. The criteria for service connection for arthritis of the elbows, wrists, hips, ankles, and feet have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307. 3.309. 3. The criteria for service connection for spinal meningitis have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307. 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1967 to September 1969. The Veteran and his spouse testified in May 2014 before the undersigned Veterans Law Judge at a Travel Board hearing at a Department of Veterans Affairs (VA) Regional Office on the service connection issues; a transcript is of record. This claim was previously before the Board in September 2018, at which time the Board remanded it for additional development. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. Such a chronic disease is presumed under the law to have had its onset in service, even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). In order for the presumption to apply, the claimant must be a veteran with 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The service personnel records show that the Veteran’s military occupational specialty was in field artillery, and that he served in Vietnam, where he participated in two counteroffensives. Therefore, the record shows that he was in combat. 1. Entitlement to service connection for a low back disability The service treatment records do not show any complaints, treatment, or diagnoses related to a low back disability. The Veteran indicated on an August 1969 medical history report that he had never had recurrent back pain and on the August 1969 discharge examination, the spine and other musculoskeletal were considered normal. VA treatment records show that in January 2003 the Veteran reported that he fell while getting out of a van two to three weeks before. He was sore for a couple weeks with no significant discomfort. The week before he had back pain while piling wood, and there had been no significant improvement. X-rays showed no significant abnormalities. The Veteran was referred for a physical therapy evaluation in March 2003 due to back pain. At April 2003 VA treatment the Veteran said that his back pain had improved dramatically, and it was noted that the Veteran refused the physical therapy referral. October 2003 VA treatment records note a diagnosis of degenerative disc disease with a history of low back pain. The Veteran complained of occasional back pain at January 2008 VA treatment. A problem list from September 2009 VA treatment includes degenerative disc disease. The Veteran had a VA examination in March 2015 at which he was diagnosed with degenerative arthritis of the lumbar spine. It was noted that after service he worked for 20 years in a carpet cleaning business and 10 years as a welder. There was right-sided intermittent, sharp back pain. The low back disability did not impact the Veteran’s ability to work, and range of motion was normal except for right lateral flexion. The examiner opined that the low back discomfort was not caused by or the result of military service. It was noted that there was no medical nexus establishing causality between military service and the current complaints. The August 1969 separation examination was normal and degenerative arthritis is part of the normal aging process. The Veteran had another VA examination in November 2015 at which he was diagnosed with degenerative disc disease and arthritis of the lumbar spine. He said that there had not been an injury to the back or symptoms for the past year. The examiner opined that the back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, including repetitive lifting and bending and running with heavy equipment. There was no medical evidence of a back condition until 2003, which was 34 years after service. Furthermore, the Veteran was not seen or treated for this condition during service, he did physically demanding activities after service, and the degenerative changes were part of the aging process. In April 2020 a VA examiner opined that it is less likely than not that that the Veteran’s low back disability was incurred in or caused by the claimed in-service injury, event, or illness, to include repetitive lifting and bending and running with heavy equipment. The examiner noted the lack of treatment in service and that the Veteran worked in physically demanding occupations post-service. It was also noted that the post-service treatment records support the Veteran’s credible reports of back pain since service. However, it was also noted that there was no evidence of degenerative changes to the lumbar spine until 2003. The examiner continued that degenerative arthritis and degenerative disc disease of the lumbar spine are common in the adult population and that the risk increases with age. The Veteran’s advancing age, physically strenuous demanding occupations, family history, and other sociodemographic risk factors more likely than not played an important role in the development of his arthritic and degenerative back conditions. The Veteran is competent to report that he has had back pain on a regular basis since service, and the Board finds him to be credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). While the back symptoms may have worsened due to the post-service occupations and other physical activities, the record also shows that they were present previously. The March 2015, November 2015, and April 2020 medical opinions are not probative because they do not consider the credible reports of back pain since service. The opinions placed great weight on the lack of documented complaints and treatment during and shortly after service. The opinions do not adequately address the Veteran’s statements regarding in-service incurrence and continuity of symptomatology. The most recent examiner also emphasized that back problems were not documented until 2003; however, at that time there was a diagnosis of degenerative disc disease, which was additional medical evidence that the Veteran’s back problems predated his 2003 examination by a significant period of time. Furthermore, while the Veteran’s post-service occupations may have contributed to the Veteran’s low back disability, the April 2020 VA examiner did not consider the repetitive lifting and bending and running with heavy equipment during service independent of post-service factors. When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. Thus, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s low back disability is related to service, and that service connection for the Veteran’s low back disability, diagnosed as degenerative disc and joint disease of the lumbar spine, is therefore warranted. 2. Service connection for arthritis of the elbows, wrists, hips, ankles, and feet The service treatment records do not show any complaints, treatment, or diagnoses related to the elbows, wrists, hips, ankles, and feet. The Veteran indicated on an August 1969 medical history report that he had never had arthritis or rheumatism, a bone, joint, or other deformity, a painful or “trick” shoulder or elbow, or foot trouble. On the August 1969 discharge examination, the extremities and feet were normal. At June 2004 VA treatment the Veteran reported an injury to the right elbow 20 years before. The Veteran had VA examinations in November 2015 VA at which he was diagnosed with degenerative arthritis of the wrists, feet, and ankles. He reported that he started to have left heel pain in August 2015 after awakening with it. It eventually went away with stretching. He denied current symptoms related to his wrists and feet. The Veteran reported not having any symptoms related to the ankles or ever being treated for them. He reported not having any symptoms or problems related to his elbows at a November 2015 examination. The examiner noted that the elbows were orthopedically and radiographically normal. The November 2015 examiner noted that the hips were orthopedically and radiographically normal. The Veteran reported that his right hip started to bother him around 2010 and that there was not specific injury. There was pain that did not affect his daily activities. There were not any symptoms related to the left hip. In April 2020 a VA examiner opined that the arthritis of the wrists, ankles, and feet was less likely than not related to active service, to include repetitive lifting and bending and running with heavy equipment. The lack of symptoms, complaints, or diagnoses during service, the normal findings from the discharge examination, and that the Veteran worked in strenuous occupations were noted. The examiner wrote that there were no credible reports of joint pain since active duty related to the ankles and that there was a post-service injury to the feet. The examiner wrote that osteoarthritic pain is perceived differently for everyone and that some people are asymptomatic, as with the Veteran. Advancing age, physically strenuous demanding occupations, family history, and other sociodemographic risk factors more likely than not played an important role in the development of his arthritic conditions. The Veteran had an examination arranged through VA in July 2020 at which he reported hip pain with walking over the past ten years. He was diagnosed with degenerative arthritis of the hips. The examiner opined that bilateral hip arthritis was less likely than not related to active service, to include repetitive lifting and bending and running with heavy equipment. It was noted that the service treatment records were silent of symptoms, complaints, or diagnoses related to the hips, and that the Veteran does not recall hip pain during service or in the years right after discharge. The Veteran is competent to report that he has had pain related to the elbows, wrists, hips, feet, and ankles since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, to the extent he has reported this it is of little weight because it is not consistent with the record. The Veteran did not report pain or other symptoms related to the elbows, wrists, ankles, and feet at VA examinations. Regarding the hips, he reported right hip pain since 2010. Furthermore, he did not report pain since service related to these areas of the body at the May 2015 Board hearing. While the Veteran has made statements to the effect that arthritis of the elbows, wrists, hips, ankles, and feet is related to service, he is not competent to make such a determination, because the question of whether it is related to service is a medical question. His statements on etiology are therefore afforded little, if any, probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been diagnosed with any elbow disability, including arthritis. Furthermore, the record does not show that there has been any functional limitation related to the elbows. The term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (2018). In summary, the Board concludes that the Veteran has not had a disability related to the elbows during the claims period or functional impairment related to them. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Therefore, the claim for service connection for arthritis of the elbows must be denied. Regarding the claim of service connection for arthritis of the hips, wrists, ankles, and feet, the April 2020 and July 2020 opinions are of probative value because the examiner considered complaints of pain where applicable, history including repetitive lifting and bending and running with heavy equipment during service, and examination results. See Nieves-Rodriguez, 22 Vet. App. at 304. There are no competent opinions of record that arthritis of the wrists, hips, ankles, and feet is at least as likely as not related to service. Furthermore, the record does not show that it was incurred within a year of service. Because the evidence preponderates against the claim of service connection for arthritis of the elbows, wrists, hips, ankles, and feet, the benefit of the doubt doctrine is inapplicable, and this claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 3. Service connection for spinal meningitis The service treatment records show that in March 1969 the Veteran was diagnosed with hyperventilation syndrome and rule out meningitis. Another record from March 1969 has diagnoses of an upper respiratory infection and hyperventilation syndrome. The service treatment records do not otherwise show complaints, treatment, or diagnoses related to spinal meningitis. At May 2013 VA psychiatric treatment the Veteran reported meningitis during service. The Veteran testified at the May 2014 hearing that he had spinal meningitis during service. He went into convulsions, was taken to the hospital, and was in a coma for three days. The Veteran’s wife testified that she remembers this, and the Veteran said it occurred at Fort Lewis. The Veteran’s testimony indicates that he was not aware of any residuals. The RO did not afford the Veteran a VA examination on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. The Board finds that there is no competent evidence of residuals of spinal meningitis during the claims period. Therefore, the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c). The Veteran has not been diagnosed with residuals of spinal meningitis since he submitted his claim. Furthermore, the record does not show that there has been any functional limitation related to it. The term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment. Saunders, 886 F.3d at 1363. In summary, the Board concludes that the Veteran has not had residuals of spinal meningitis during the claims period or functional impairment related to it. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303(a), (d). Therefore, the claim for service connection must be denied. Because the evidence preponderates against the claim of service connection for spinal meningitis, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. REASONS FOR REMAND VA treatment records to December 2020 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from December 2020 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Entitlement to service connection for arthritis of the cervical spine, right shoulder, hands, and left knee is remanded. The Veteran complained of pain in his joints at an evaluation he had at October 2002 VA treatment related to a crossbow application. It was noted that he had a history of right shoulder pain and chronic dysfunction. October 2003 VA treatment records state that the Veteran had a right shoulder chronic rotator cuff tear with a history of chronic shoulder joint pain. November 2009 VA treatment records state that the Veteran had had mild chronic arthropathies involving the shoulder joints since 2002. In May 2014 a treating physician noted that the Veteran had left knee osteoarthritis. The Veteran also testified at the May 2015 hearing that during service he repetitive lifting and bending and running with heavy equipment. His knees and shoulders ached, and it has been “pretty much” continuous since service. The Veteran had a VA examination in March 2015 at which he was diagnosed with left knee degenerative arthritis. He reported constant, sharp pain. The examiner opined that that the knee pain was not caused by or a result of military service because of the lack of a medical nexus, including the August 1969 separation examination and that degenerative arthritis is part of the normal aging process. At another November 2015 VA examination the Veteran was diagnosed with degenerative disc disease of the cervical spine at a November 2015 examination. He reported that one year before he could not turn his neck to the side and physical therapy led to improvement. The Veteran was also diagnosed with degenerative arthritis of the hands and osteoarthritis of the wrists at a November 2015 VA examination. He said that his right thumb could not extend as far back as it used to but that he did not remember any injury to the hands. He denied being seen for a hand condition during service. The Veteran was diagnosed with degenerative changes of the right shoulder with impingement and rotator cuff injury at the November 2015 examination. He said that for the past six to eight years he had hardly been able to move his right shoulder overhead and that there had not been an injury. The examiner opined that the degenerative arthritis of the hands, degenerative changes of the right shoulder with impingement and rotator cuff injury, osteoarthritis of the left knee, and degenerative disc disease of the cervical spine were less likely than not incurred in or caused by the claimed in-service injury, event, or illness, including repetitive lifting and bending and running with heavy equipment. The rationale was that the Veteran was not seen or treated for these conditions during service, that the Veteran did physically demanding activities after service, and that the degenerative changes were part of the aging process. In April 2020 a VA examiner opined that the arthritis of the hands, right shoulder, and left knee was less likely than not related to active service, to include repetitive lifting and bending and running with heavy equipment. The lack of symptoms, complaints, or diagnoses during service, the normal findings from the discharge examination, and that the Veteran worked in strenuous occupations were noted. The examiner wrote that there were no credible reports of joint pain since active duty related to the hands. Regarding the left knee and right shoulder, it was noted that there were post-service injuries. The examiner wrote that osteoarthritic pain is perceived differently for everyone and that some people are asymptomatic, as with the Veteran. Advancing age, physically strenuous demanding occupations, family history, and other sociodemographic risk factors more likely than not played an important role in the development of his arthritic conditions. In September 2020 a VA examiner opined that degenerative disc disease of the cervical spine was less likely than not incurred in or caused by service, to include repetitive lifting and bending and running with heavy equipment. It was noted that the service treatment records are silent as to the cervical spine, including the discharge examination. The treatment records do not show complaints of a neck condition until 40 years after service, and the Veteran performed physically demanding labor after service. Arthritic and degenerative changes were common in the adult population. Probative value cannot be given to the April 2020 and September 2020 opinions because they are based in part on the Veteran reports of pain since service not being credible. In effect, the examiner made a credibility finding instead of relying on the Board’s prior finding of credibility. Therefore, a new opinion must be obtained before the claim can be decided on the record. 2. Entitlement to a compensable evaluation for left ear hearing loss is remanded. 3. Entitlement to an evaluation in excess of 10 percent for tinnitus is remanded. The Veteran last had an audiological examination arranged through VA in August 2017. In light of the state of the record, the Board finds that the Veteran must be afforded a contemporaneous VA examination to assess the current severity of the left ear hearing loss and tinnitus. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran’s pertinent medical history). The matters are REMANDED for the following action: 1. Obtain VA treatment records from December 2020 to the present. 2. Thereafter, obtain an addendum to the April 2020 and September examiner’s opinions regarding arthritis of the cervical spine, right shoulder, hands, and left knee. The Veteran’s claims folder should be provided to the reviewer prior to completion of the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s arthritis of cervical spine, right shoulder, hands, and left knee is related to active service, to include in-service repetitive lifting and bending and running with heavy equipment. The examiner must consider the Veteran’s credible reports of pain since his active service and must not make a contrary finding of credibility. The examiner may not consider the lack of continuity of treatment in rendering an opinion. The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 3. Thereafter, schedule the Veteran for an appropriate VA examination to ascertain the severity of the left ear hearing loss and tinnitus. The entire claims file must be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted, and the results reported. The VA examiner must also address the extent of functional and industrial impairment due to the Veteran’s disability being examined and furnish a full description of the effects of the service-connected disability upon the Veteran’s ordinary activity, including employment. All opinions must be supported by a complete rationale. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.