Citation Nr: 22014458 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-36 798 DATE: March 14, 2022 ORDER Service connection for degenerative disc disease of the lumbar spine and IVDS is denied. Service connection for headaches is denied. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's degenerative disc disease of the lumbar spine and IVDS began during active service, or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that a headache disability began during active service, or is otherwise related to an in-service injury or disease. 3. The evidence of record persuasively weighs against finding that a left knee disability began during active service, or is otherwise related to an in-service injury or disease. 4. The evidence of record persuasively weighs against finding that a right knee disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the lumbar spine and IVDS are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a headache disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1994 to May 1996 and from February 2004 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July and August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran appeared and testified at a virtual Board hearing before the undersigned Veterans Law Judge. This matter was previously remanded by the Board in September 2021 for further development. A review of the record indicates that the Board's directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection for a back disability The Veteran contends that his back disability is due to service. Specifically, he contends that his back disability is a result of numerous parachute jumps while in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative disc disease of the lumbar spine and IVDS, and evidence shows that the parachute jumps occurred, (documented in the 1990s), the evidence of record persuasively weighs against finding that the Veteran's diagnosis of degenerative disc disease of the lumbar spine and IVDS began during service or is otherwise related to an in-service injury or disease. VA treatment records show the Veteran was not diagnosed to have degenerative disc disease and IVDS until June 2021, 16 years after his separation from service and twenty-five years after his last parachute jump. While the Veteran is competent to report having experienced symptoms of low back pain consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative disc disease or IVDS. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the Veteran's current contentions that his back pain has been present since service are contradicted by his past statements regarding the presence and onset of his back pain, (as noted below). The Board finds the more contemporaneous statements to be more probative. The December 2021 VA examiner opined that the Veteran's degenerative disc disease and IVDS were not at least as likely as not related to an in-service injury or disease, including parachute jumps. The rationale was that the Veteran's back pain in service did not become chronic, the Veteran denied any back pain in July 1997, July 2003, and March 2004, after he last reported back pain in 1996. Specifically, the examiner stated that "while parachute jumps could be a potential mechanism of injury for a low back- there is no evidence that this veteran was experiencing a chronic low back condition until the MRI in 2021 showed degenerative changes and disc bulging." The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner Dr. H.K. opined that the Veteran's back disabilities were due to service. The rationale was that military service, and specifically the Veteran's parachute jumps, place additional strain on joints. Further, Dr. H.K. states that due to the Veteran's stoic personality he did not complain about his injuries. This opinion is, however, less probative than the VA examiner's opinion. The opinions offered and the Veteran's current contentions are inconsistent with the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). While the Veteran may not have gone to the doctor every time he was injured, either in service or since, at his March 1996 examination the Veteran indicated that he had swollen or painful joints, frequent headaches, dizziness, eye trouble, hearing loss, head injury, skin disease, pain or pressure in chest, frequent indigestion, piles or rectal disease, recent gain or loss of weight, and recurrent back pain. (Thus, he does appear to report his ailments.) However, by July 1997, the Veteran denied any of these conditions, and noted he was in fair health. In July 2003, the Veteran again denied any physical ailments and stated he was in good health. In February 2004, the Veteran denied any medical problems and noted his health was excellent. Thus, the Veteran's own statements in near proximity to the events in question contradict the current contentions and opinion of the private practitioner. Here, the information provided to the private practitioner is contradicted by the evidence of record. Consequently, the Board gives more probative weight to the December 2021 VA examiner's opinion. The Veteran believes his degenerative disc disease and IVDS are related to an in-service injury or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record. Service connection for headaches The Veteran contends that his headaches are due to service. Specifically, he contends that his headaches are due to hitting his head during a parachute jump landing. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, while the Veteran has a current diagnosis of migraine headaches, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of migraine headaches began during service or is otherwise related to an in-service injury or disease. VA treatment records show the Veteran was not diagnosed with migraine headaches until July 2021, 15 years after his separation from service and 25 years after the claimed incident. While the Veteran is competent to report having experienced symptoms of headaches consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of migraines. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Here, the Veteran claims that he struck his head on the ground during a parachute jump landing. A March 1996 report of medical history indicates that the Veteran struck his head on the ground on a jump. He also listed frequent sinus headaches as the source of his headaches. Subsequent reports of medical history did not indicate any headaches. However, a March 2004 post deployment health assessment indicates that the Veteran developed headaches during his deployment, but that he was not currently suffering from headaches. As explained by the December 2021 VA examiner, this indicates that the headaches were acute in nature, and had resolved by the time of the March 2004 assessment. Further, the indication that they developed during the deployment indicates that the Veteran had not been suffering from the headaches prior to that time. Thus, the headaches indicated in March 1996, were not a chronic problem that persisted to March 2004. The December 2021 VA examiner opined that the Veteran's migraine headaches are not at least as likely as not related to an in-service injury or disease, including striking his head on the ground during a jump. The rationale was that the Veteran had subsequently denied any headache symptoms and any headaches he suffered in service were acute and had resolved by the time the Veteran separated from service. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner Dr. H.K. opined that the Veteran's headaches were at least as likely as not due to service. The rationale was that Veteran had headaches in service following a parachute landing and they were ongoing as evidenced by a report of headache in 2013. Dr. H.K. indicates that the stress of military life or sleep disturbance could be a cause of headaches. Further, she indicates that the Veteran's headaches could be due to his service-connected tinnitus. In support of her conclusion that the Veteran's migraine headaches were secondary to his service-connected tinnitus, Dr. H.K. cited a paper entitled Tinnitus and Headache. However, there is no evidence in this paper of a causative effect of tinnitus for headaches. Rather, this paper discusses the types of headaches, including migraines, where tinnitus is a symptom of the headache. Specifically, the paper states that "[t]innitus can be associated with multiple types of headache disorders. One headache type where tinnitus is sometimes seen is migraine." Although the December 2021 VA examiner stated that tinnitus has an association with the development of headaches, such association was unclear. Further, there were a multitude of other factors in the development of headaches, such that the examiner could not conclude that the Veteran's headaches were at least as likely as not due to his service-connected tinnitus. Dr. H.K.'s conclusion that the Veteran had headache symptoms in service, and then ongoing since then, is not supported by the record. As discussed above, the Veteran reported hitting his head on the ground on a jump in March 1996. The Veteran separated from the period of active duty in May 1996, and did not indicate any additional headache symptoms during service or during his reserve service. He had an additional period of active service from February 2004 to January 2005, where he indicated headaches during a deployment, but did not indicate current headache symptoms on his post deployment evaluation. As noted by Dr. H.K., the Veteran did not report further headache symptoms until 2013, 8 years after separation from service and 17 years after the initial complaint of headaches. Consequently, the Board gives more probative weight to the December 2021 VA examiner's opinion. While the Veteran currently contends that his headaches began after he hit his head during a jump landing, and have been consistent since then, statements in July 1997, April 2002, and July 2003, denied any current headache symptoms. The Board finds the contemporaneous statements to be more probative than those made years later. The Veteran believes his migraine headaches are related to an in-service injury or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex; therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the probative medical evidence of record. Service connection for a left knee disability Service connection for a right knee disability The Veteran contends that his bilateral knee disability is due to service. Specifically, he claims that his parachute jumps in service caused his knee disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that, while the Veteran has a current diagnosis of bilateral knee strain, and evidence shows that the Veteran complained of knee pain in service and had parachute jumps, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of bilateral knee strain began during service or is otherwise related to an in-service injury or disease. Here the Veteran reported knee pain in 1996 and swollen, stiff, and painful unspecified joints in March 2003. In July 1997, February 2004, and December 2004, he denied any knee or joint pain. Post-service records show the Veteran complained of knee pain in 2013 that had been worsening over the past year. At a VA examination in July 2015, the Veteran noted onset of his knee pain approximately 5 years prior. Private treatment records from April 2016 noted the presence of bilateral knee pain for approximately five years. VA treatment records show the Veteran was not diagnosed with bilateral knee strain until April 2013 and patellofemoral pain syndrome until April 2016, 8 years after his separation from service. The Veteran testified that his knee pain started while he was on jump status at Ft. Bragg. He further stated that the pain has been present since then and has progressively gotten worse as he has aged. However, these claims are contradicted by his statements to medical professionals for the purpose of treatment that place the onset of knee pain in approximately 2010, four years after separation from service and 14 years after he was on jump status. While the Veteran is competent to report having experienced symptoms of knee pain consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of knee strain or patellofemoral pain syndrome. The issue is medically complex, as it requires knowledge of anatomical relationships. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The December 2021 VA examiner opined that the Veteran's bilateral knee disability is not at least as likely as not related to an in-service injury or disease, including parachute jumps. The rationale was that the Veteran did not have complaints of knee pain at the time of separation, any knee pain the Veteran experienced in service was not chronic, and the Veteran's post service employment as a plumber was more likely than not the cause of the Veteran's current knee disability. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner Dr. H.K. opined that the Veteran's bilateral knee disability was at least as likely as not due to service. The rationale was that there are many causes of joint injuries, including overuse and parachute jumps. This opinion is, however, less probative than the VA examiner's opinion. While Dr. H.K. indicates that she reviewed lay statements from the Veteran and a friend, military treatment records, and other medical records, including an April 2016 orthopedic consult, it is not clear that she reviewed all of the available medical records, especially those where the Veteran indicates an onset of knee disability years after separation from service and decades after any parachute jumps. In part, Dr. H.K. relies on the April 2016 statement of Dr. A.L.P. who stated that the Veteran's patellofemoral pain syndrome was due to his time in service. However, there is no indication that Dr. A.L.P. reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on the Veteran's self-reported medical history, which is inconsistent with VA treatment records that show the Veteran's bilateral knee disability had its onset after separation from service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). (Continued on the next page) Consequently, the Board gives more probative weight to the December 2021 VA examiner's opinion. The Veteran believes his bilateral knee disability is related to an in-service injury or disease. At his July 2021 hearing, he testified that his knees began hurting in service and have progressively gotten worse with age. He believed his injury to be a wear and tear type of injury. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent medical evidence of record. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Uller, Associate 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.