Citation Nr: 22014207 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-35 789 DATE: March 11, 2022 ORDER Service connection for a lower back condition is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. Service connection for Crohn's disease is denied. Service connection for generalized anxiety disorder is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's current low back condition has not been shown to be etiologically related to service. 2. The Veteran's current GERD has not been shown to be etiologically related service. 3. The Veteran's current Crohn's disease has not been shown to be etiologically related to service. 4. The Veteran's current generalized anxiety disorder has not been shown to be etiologically related to service. 5. The Veteran does not have a current diagnosis of bilateral hearing loss. 6. The Veteran does not have a current diagnosis of tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lower back condition have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for Crohn's disease have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for generalized anxiety disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 6. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from November 1980 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In his July 2017 VA Form 9, substantive appeal, the Veteran requested to appear before the Board for a hearing regarding these issues and was scheduled for such a hearing in January 2022. However, the Veteran failed to appear for this hearing and the hearing request is thus deemed withdrawn. See 38 C.F.R. § 20.704 Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection 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). Service connection may also be granted for certain chronic diseases, including arthritis, and hearing loss and tinnitus as organic diseases of the nervous system, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112(a), 1133; 38 C.F.R. §§ 3.307, 3.309. When chronic diseases are at issue, the second and third elements for service connection may alternatively be established by showing continuity of symptomatology. See Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is met when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time of the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 1. Entitlement to service connection for a lower back condition The Veteran seeks service connection for a lower back condition; however, he has not offered any contentions as to how this condition is related to his military service. Service treatment records (STRs) are silent for any complaints of or treatment for a condition related to the lower back. Notably, the Veteran's entrance and separation examinations both report a normal spine. See October 1980 and August 1983 Reports of Medical Examination. According to private treatment records from July 2014, the Veteran reported being diagnosed with degenerative disc disease (DDD) in 2013. VA records from September 2015 recount complaints of chronic low back and neck pain since "the injury on an elevator in 1989." It was noted he had a history of spondylosis and degenerative disc disease (DDD), for which he was on oxycodone for pain management, but he was off of that for six to eight months. Low back pain was said to be worse in the morning, with pain an 8/10, but it got better with movements later in the day. An imaging report denoted no fracture and normal alignment of the back. Disc spaces were narrowed at L5/S1, and there was minimal marginal osteophyte formation in the mid and lower lumbar spine. Sacroiliac joints were patent and vertebral body heights were maintained. The impression found minimal degenerative changes with disc space narrowing at L5/S1 with no fracture. Based on the foregoing, the Board finds service connection is not warranted for the Veteran's lower back condition. While the Veteran does have a current low back disability as evidenced by the September 2015 VA records and imaging, the Board finds his current low back condition is not shown to be related to his time in service. There is no medical evidence indicating his low back condition was caused by any in-service event, injury or disease. Neither does the Veteran point to any such occurrence, such as a particular injury or event in service to which he attributes his low back condition. Instead, VA medical records from September 2015 attribute his low back condition to an elevator injury in 1989, several years after the Veteran left service. Additionally, service connection under chronicity or continuity of symptomatology is not warranted as the Veteran's lower back condition did not manifest within the presumptive period. As noted, the record shows complaints of a chronic low back disability since an elevator injury post-service in 1989, and the Veteran himself reported being first diagnosed with DDD in 2013. See July 2014 private medical record. The Board acknowledges the Veteran has not been afforded a VA examination in this matter. However, while there is competent medical evidence of a current disability, there is no indication in the record that the Veteran's low back condition is due to an injury or event in service. Accordingly, a VA examination regarding this direct service connection claim is neither necessary nor warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In sum, the Board finds that there is no competent evidence (medical or otherwise) linking the Veteran's current low back disorder to his active service. Without such evidence, the weight of the evidence is against his claim. Accordingly, this claim is denied. 2. Entitlement to service connection for GERD and Crohn's disease The Veteran seeks service connection for GERD and Crohn's disease. He has not offered any contentions as to how he believes these conditions are related to his military service. The Veteran's STRs, to include his October 1980 entrance examination and August 1983 service separation examination report, are silent for any complaints, findings, treatment, or diagnosis related to a GERD disorder or Crohn's disease. Post-service treatment records document GERD only as early as September 2015, over 30 years after separation from service. As for Crohn's disease, VA records from September 2015 note the Veteran reported a history of that condition as well as symptoms of chronic epigastric pain and heartburn. He denied diarrhea and blood or mucus in his stool, but stated he was usually constipated. He reported being diagnosed with Crohn's disease two years prior, dating back to 2013. It was noted he had Crohn's disease, post colonoscopy. Based on the foregoing, it is not shown that the Veteran's GERD or Crohn's disease is related to his military service. While the Veteran has current diagnoses for both conditions, post-service treatment records show they were diagnosed decades after his separation from service. Additionally, as noted above, the Veteran has not offered any specific contentions regarding how he believes his current GERD or Crohn's disease may be related to an in-service injury, event, or disease. With regard to whether a VA examination is required, while there is competent medical evidence of a current disability, there is no indication in the record, to include no competent evidence of record showing that the Veteran's GERD or Crohn's disease is etiologically related to service. Accordingly, a VA examination regarding these claims is neither necessary nor warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In sum, the Board finds that there is no competent evidence (medical or otherwise) linking the Veteran's current GERD and Crohn's disease to his active service. Without such evidence, the weight of the evidence is against both these claims. Accordingly, these claims are denied. 3. Entitlement to service connection for Generalized Anxiety Disorder The Veteran's STRs are silent for any complaints of or treatment for a psychological condition, to include anxiety. Notably, the Veteran's entrance and separation examination reports both report his psychiatric condition as normal. See October 1980 and August 1983 Reports of Medical Examination. Post-service VA treatment records from September 2015 note the Veteran was positive for anxiety. Records later that month note the Veteran complained of severe emotional distress and anxiety but did not describe panic symptoms, hopelessness or demoralization, or insomnia, obsessionally. He had no recent intoxication and denied hallucinations. The diagnostic impression was of adjustment disorder with mixed mood and anxiety. Additional VA records later that month include reports of anxiety and insomnia. He reported having a normal last stress test two years prior. VA records from September 2015 through December 2015 indicate the Veteran had been attending psychotherapy appointments with the goal of self-managing anxiety and stress. In December 2015, it was noted that his progress was such that no follow-up or continued appointment was deemed necessary. While the record indicates the Veteran has experienced anxiety, the Board finds that service connection is not warranted for this condition. In particular, the record reflects anxiety and stress symptoms began many years after service. Notably, in September 2015 the Veteran reported a normal stress test two years prior, representing the earliest indication of even any treatment sought for anxiety or stress. The Veteran also has not identified any particular in-service stressors, either in his claim before VA or in the course of his medical treatment, to which he attributes his anxiety and stress. With regard to whether a VA examination is required, the Board notes that while there is competent medical evidence of a current disability, there is no indication in the record, to include no competent evidence of record showing that the Veteran's anxiety was etiologically related to his service. Accordingly, a VA examination regarding the Veteran's claim is neither necessary nor warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In sum, the Board finds that there is no competent evidence (medical or otherwise) linking the Veteran's current anxiety disorder to his active service. Without such evidence, the weight of the evidence is against his claim. Accordingly, this claim is denied. 4. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran seeks service connection for bilateral hearing loss and tinnitus. His STRs, to include his October 1980 service entrance examination and August 1983 service separation examination report, report normal hearing and are silent for any complaints related to tinnitus. Additionally, post-service records are silent as to any treatment for, complaints of, or diagnosis of hearing loss or tinnitus. The Veteran was scheduled for a VA examination for the condition but failed to appear and did not show good cause for his failure to do so. Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. In this case, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from hearing loss or tinnitus continuously since service. See 38 C.F.R. § 3.303(b). Nor has the Veteran offered any other specific contentions regarding how he believes any current hearing loss or tinnitus might be related to service, to include any allegations of in-service noise exposure. Significantly, with respect to hearing loss, the record does not contain any competent medical evidence demonstrating that the Veteran has a current hearing loss disability pursuant to 38 C.F.R. § 3.385. The evidence does not show that he has a current hearing loss disability in either ear, as prescribed by VA standards, nor any reports of tinnitus during service, within one year of service, or indeed at any point since service. Absent probative evidence of a current disability there can be no valid claim of service connection for hearing loss or tinnitus. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). (Continued on the next page) Based on the foregoing, the claims for service connection for bilateral hearing loss and tinnitus are denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stuedemann, A. 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.