Citation Nr: 1752482 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 06-12 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for left wrist condition. 2. Entitlement to service connection for right wrist condition. 3. Entitlement to service connection for left knee condition. 4. Entitlement to service connection for neck condition. 5. Entitlement to service connection for right shoulder condition. 6. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1972 to February 1974, with subsequent service in the United States Army Reserves. The Veteran served on temporary active duty in Kuwait from June 26, 1994 to July 16, 1994. These matters come to the Board of Veterans'Appeals (Board) on appeal from September 2008, November 2015, and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The September 2008 rating decision denied service connection for left wrist condition and left knee condition. The November 2015 rating decision denied service connection for neck pain, right shoulder pain, and right wrist arthritis. The March 2016 rating decision denied service connection for bilateral hearing loss. In March 2006, the Veteran perfected his appeal to reopen his claim for service connection for hypertension. In an April 2017 rating decision, the Veteran was granted entitlement to service connection for hypertension. As that decision represents a full grant of the benefit sought on appeal, the issue of entitlement to service connection for hypertension is no longer before the Board. In his January 2009 VA Form 9, substantive appeal, the Veteran requested a Board hearing. In September 2015, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO regarding his left knee and left wrist conditions. The hearing transcript has been associated with the claims file. In November 2015, the Veteran requested to withdraw his request for a Board hearing, as the September 2015 DRO hearing satisfied his request. In November 2016, the Board reopened the claim for service connection for left knee condition, and remanded the underlying service connection claim along with the issues of service connection for left wrist condition, right wrist condition, neck condition, right shoulder condition, and bilateral hearing loss. The issues of service connection for right wrist condition, left knee condition, neck condition, and right shoulder condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's left wrist condition had its onset and has continued since service. 2. A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability is related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left wrist disorder have been met. 38 U.S.C. §§ 1110, 1157 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1157 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, 4.85 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Concerning the issue of service connection for bilateral hearing loss, the Veteran filed this claim using a VA Form 21-526EZ for fully developed claims (FDC) in January 2016. Under the framework for a FDC, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a veteran submits all evidence relevant and pertinent to his or her claim other than service treatment records (STRs) and VA medical center (VAMC) treatment records, which will be obtained by VA. The fully developed claim form includes notice to the veteran of the evidence necessary to substantiate the claim, the evidence VA is responsible for providing, and the evidence the Veteran is responsible for providing. Thus, as notice was provided as part of the VA Form 21-526EZ and VA obtained all STRs and VAMC treatment records reported by the Veteran, VA has satisfied the duty to notify and assist. Concerning the issue of service connection for left wrist condition, as this decision is completely favorable to the Veteran, there is no reason to belabor the impact of the VA's duty to notify and assist on this matter. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (to include SNHL), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker, 708 F.3d at 1337. Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Left Wrist Condition The Veteran contends his left wrist condition began when he was building barracks in service. He contends his duties included mudding the walls, which required repetitive twisting of his wrists to place the mud. See June 2008 VA treatment visit and September 2015 DRO hearing. Resolving reasonable doubt in favor of the Veteran, the Board concludes the Veteran's left wrist condition had its onset and has continued since service STRs show the Veteran reported left wrist pain after using a hammer all day at work in July 1972. His subsequent STRs, to include his October 1973 service separation examination report and report of medical history, are silent for complaints, treatment or diagnosis of a left wrist condition. Postservice, in December 1989, the Veteran reported some wrist symptoms. In June 2008, the Veteran reported left wrist discomfort and aching since the military when he was required to sling mud on a wall. In a September 2008 VA treatment visit he was assessed with degenerative joint disease of the left wrist with recent flareup. In March 2009, the Veteran reported a history of injury to the left wrist in the military with intermittent left wrist pain. In July 2009, the Veteran's private treating doctor, Dr. J.L., stated that after reviewing the medical records, including the Veteran's military medical records, the Veteran's left wrist problems were related to his time in service. In November 2013, Dr. J.L. again opined the Veteran's left wrist problems were related to his time in service. In a May 2015 private treatment visit, the Veteran was assessed with wrist pain, wrist sprain, and osteoarthritis. At the September 2015 DRO hearing, the Veteran reported aggravating his wrist working as a mason in service. In August 2015, Dr. J.L. again opined the Veteran's left wrist problems were related to his time in service. In March 2016, the Veteran was given a nerve conduction study (NCS) that showed moderate bilateral median neuropathy of the wrist consistent with carpel tunnel syndrome (CTS). In September 2017, the Veteran was afforded a VA examination. The examiner gave a diagnosis of bilateral wrist tendonitis. The examiner noted the Veteran reported an onset of wrist pain from when his unit was responsible for building barracks. His job was mudding the walls, which required repetitive twisting of his wrists to place the mud. He reported a gradual worsening of pain in both wrists. The examiner opined the Veteran's current bilateral wrist issues were less likely than not related to his time in service. The examiner's rationale was that following the July 1972 complaint of left wrist pain, there were no follow-up visits in service or the year following separation. The Board finds the evidence to be in equipoise as to whether the Veteran's left wrist condition is etiologically related to service. The Board gives the opinion of Dr. J.L., that the Veteran's left wrist pain is related to service, some probative weight. While the decision lacks detailed rationale, Dr. J.L. is the Veteran's treating physician and reviewed the medical records, to include the Veteran's STRs. Dr. J.L.'s opinion is supported by an in-service visit for left wrist pain and the Veteran's consistent lay statements of left wrist pain since service. The Board gives limited weight to the September 2017 VA examination. The examiner did not address the Veteran's contention that he has experienced continued left wrist pain since service in his rationale. The Veteran is competent to testify to the onset and continued symptoms of left wrist pain. As the Veteran has also been consistent in his accounts of continued left wrist pain after his in-service complaint, the Board finds them credible. Accordingly, the Board concludes that the evidence is at least evenly balanced as to whether the Veteran's left wrist condition had its onset and has continued since service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a left wrist condition is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Hearing Loss The Veteran contends his hearing loss is the result of noise exposure from driving large trucks without hearing protection in service. See May 2016 private treatment record. Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board concedes the Veteran's hearing impairment meets the criteria for hearing loss disability under 38 C.F.R. § 3.385. This is supported by February 2016 VA examination audiological testing. The Board also concedes noise exposure in service. Significantly, the Veteran has already established service connection for tinnitus based upon his exposure to loud noises in service. Therefore, the issue before the Board is whether there is competent evidence of a nexus between the Veteran's in-service noise exposure and postservice hearing loss. STRs do not show auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz to be 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz to be 26 decibels or greater. Speech recognition testing was not completed. Postservice treatment records do not reflect the Veteran meeting the criteria for hearing loss disability under 38 C.F.R. § 3.385 until February 2016. Periodic audiogram testing performed while the Veteran was in the Army Reserves showed threshold shifts not amounting to hearing loss disability by VA standards. See March 1978, May 1992, and March 1994 audiometer results. In October 2011, a VA examination audiogram again showed threshold shifts not amounting to hearing loss disability by VA standards. In February 2016, a VA examination audiogram showed bilateral sensorineural hearing loss, meeting the criteria for hearing loss disability under 38 C.F.R. § 3.385. This finding was confirmed by May 2016 private treatment testing. Based on the foregoing, it is not shown that the Veteran's bilateral hearing loss disability had its onset in service or became manifest in the first postservice year. It is also not shown that the Veteran has suffered from hearing loss symptoms continuously since service. Although the Veteran reported in a May 2016 private treatment record that he had had hearing loss for "years and years," a review of the Veteran's STRs, to include from his reserve service, show that he did not complain of hearing loss. Notably, on March 1978 and March 1994 examinations while the Veteran was in reserve service, he demonstrated normal hearing levels and also specifically denied hearing loss in his report of medical history. Accordingly, service connection for bilateral hearing loss on the basis that such became manifest in service and persisted since, is not warranted. As there is no competent and credible evidence that SNHL was manifested in the first postservice year, there is also no basis for considering (and applying) the 38 U.S.C. § 1112 chronic disease presumptions (for SNHL as an organic disease of the nervous system). Regarding whether the Veteran's bilateral hearing loss is otherwise related to his service, to include his work driving large trucks without hearing protection, the preponderance of the evidence supports the Veteran's postservice hearing loss disability was not etiologically related to service. The February 2016 VA examiner opined the Veteran's bilateral hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service because entrance and exit audiograms showed normal hearing. A June 2017 VA examiner provided an addendum opinion, opining the Veteran's hearing loss is less likely as not related to military service. As rationale, the examiner identified there was no significant shift in hearing thresholds from the enlistment exam in 1972 to the separation exam in October 1973, which is evidence of no permanent auditory damage in either ear from conceded noise in service. The examiner identified there was no significant shift in hearing thresholds from 1972 to 1992 in either ear, which is objective evidence of no permanent auditory damage from conceded noise exposure on Reserve duty. The examiner explained that although noise exposure is conceded and the relationship of noise, auditory damage, and hearing loss is well established, auditory damage and hearing loss are not conceded on noise exposure alone. There must be a nexus of auditory damage to related current hearing loss to military service. The examiner acknowledged that normal hearing at separation does not preclude service connection in the presence of a later auditory shift according to Hensley v. Brown. 5 Vet. App. 155, 157 (1993). Here, not only was hearing normal at separation from active duty and 20 years later, there is no significant shift in hearing thresholds, objective evidence of there being no permanent auditory damage. The examiner states that the threshold shift from the 2011 audiological testing to the February 2016 and May 2016 audiological testing is consistent with aging over 5 years at the Veteran's age. The Board gives great probative weight to the June 2017 VA examination. This opinion gives a complete rationale. The examiner discusses the threshold shifts in audiological testing throughout the record, acknowledges that normal hearing at separation does not preclude service connection in the presence of a later auditory shifts, and explains why later shifts are less likely than not related to the Veteran's conceded in-service noise exposure. This opinion is also supported by the February 2016 VA examiner's opinion. There are no competent opinions to the contrary. The preponderance of the evidence is against the claim, so the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). For these reasons, the Veteran's claim for service connection for bilateral hearing loss is denied. ORDER Service connection for left wrist condition is granted. Service connection for bilateral hearing loss is denied. REMAND The January 2017 VA examinations for the right wrist, left knee, neck, and right shoulder are inadequate. The examiner opined these conditions were less likely than not related to the Veteran's time in service with the sole rationale being the lack of documentation of symptoms in service or within one year of discharge. The examiner did not address the Veteran's lay statements regarding the onset and nature of his symptoms. In regard to the right wrist, the examiner did not address the Veteran's contention of continuing right wrist pain since working to build barracks in service, which required repetitive twisting of his wrists. The examiner did not address the NCS testing consistent with moderate carpel tunnel. In regard to the left knee, the examiner did not address the Veteran's contention that his left knee injury was sustained when he was rolling a wheelbarrow down a ramp and fell on his left knee in service. The examiner did not address a buddy statement from a coworker who observed the Veteran dragging his left leg and massaging his left knee. In regard to the neck, the examiner did not address the Veteran's contention of continued neck pain since service, postservice visits for neck pain and strain, or the likelihood the diagnosis of neck strain in service was a manifestation of his later diagnosed multilevel cervical degenerative disc disease. In regard to the right shoulder, the examiner did not address the Veteran's contention that his right shoulder pain was caused by frequent and prolonged episodes of heavy lifting in service. Accordingly, the case is REMANDED for the following actions: 1. Forward the claims file to a qualified medical professional to provide an addendum opinion on the nature and etiology of the Veteran's right wrist, left knee, neck, and right shoulder conditions. The examiner must review the claims file (to include this remand). If the examiner determines that the requested opinion cannot be provided without an examination, the Veteran should be scheduled for an examination. After reviewing the relevant evidence, the examiner must opine: (a) Is at least as likely as not (50 percent or better probability) that the Veteran's right wrist condition had its onset in service or is otherwise etiologically related to his service? Specifically discuss the Veteran's contention that his right wrist condition is etiologically related to building barracks in service, which required repetitive twisting of his wrists. See June 2008 VA treatment visit and 2017 VA examination. (b) Is at least as likely as not (50 percent or better probability) that the Veteran's left knee condition had its onset in service or is otherwise etiologically related to his service? Specifically discuss the Veteran's contention that the onset of his left knee condition was when he was rolling a wheelbarrow down a ramp and fell on his left knee in service. See September 2015 hearing and January 2017 VA examination. Discuss the September 2010 buddy statement from his coworker, who has known the Veteran since 1981, and observed the Veteran dragging his left leg and massaging his left knee. (c) Is at least as likely as not (50 percent or better probability) that the Veteran's neck condition had its onset in service or is otherwise etiologically related to his service? Specifically discuss whether it is as likely as not that the Veteran's July 1994 visit for neck strain during active duty is at least as likely as not (50 percent or better probability) a manifestation of his later visits for neck strain or later diagnosed cervical multilevel degenerative disease? (d) Is at least as likely as not (50 percent or better probability) that the Veteran's right shoulder condition had its onset in service or is otherwise etiologically related to his service? Specifically discuss the Veteran's contention that his right shoulder pain was caused by frequent and prolonged episodes of heavy lifting in service. See January 2017 VA examination and January 2017 VA treatment visit. The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Upon completion of the addendum opinion, the AOJ should review the opinions to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any necessary corrective action. 38 C.F.R. § 4.2 (2017). 6. Upon completion of the above actions, readjudicate the claims. If any of the decisions are adverse to the Veteran, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Thereafter, this issue should be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs