Citation Nr: 1756548 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-03 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to an initial compensable rating for service-connected left ear hearing loss. REPRESENTATION Appellant represented by: Marcia L. Moellring, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to February 1973, with additional service in the United States Navy Reserve and National Guard. These matters come before the Board of Veterans' Appeals on appeal from October 2012 and March 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In October 2016, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing; a transcript of the hearing is of record. Following the hearing, the Veteran submitted evidence in February 2017 without a waiver of Agency of Original Jurisdiction (AOJ) consideration. However, since the Veteran's Form 9 was received after February 2, 2013, a waiver of review by the AOJ was not required. See § 501, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or the claimant's representative requests in writing that the AOJ initially review such evidence). The issues of entitlement to service connection for a left knee disorder and right ear hearing loss, and entitlement to an initial compensable rating for left ear hearing loss, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT The competent and credible evidence of record is at least in relative equipoise as to whether the Veteran's degenerative arthritis of the right knee, status post total knee arthroplasty, is related to his in-service injury. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the right knee, status post total knee arthroplasty are met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts demonstrate that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if pre-existing service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury; (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id. at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran claims entitlement to service connection for a right knee disorder. Specifically, the Veteran's claims that, during active duty service in August 1972, he injured his knee after the ship he was aboard, the U.S.S. Holt, was struck by anti-ship mines. See, e.g., October 2016 Hearing Transcript, pp. 24-25. When the ship was struck, he fell down a flight of stairs, and his right knee was caught between the ladder and the stanchion, and his left leg was curled up underneath him on the ladder. Id. at 24. He testified that a fellow servicemember helped him up, and that he was given bandage for an open wound. See id. at 25. He testified that, following the accident, he experienced chronic right knee pain that has continued to the present day. See id. at 26. Pertinent evidence of record includes the Veteran's lay statements, his service treatment records, service personnel records, a February 2017 medical opinion from the Veteran's private physician, and a May 2012 VA examination report. Service treatment records are silent for any complaints related to the Veteran's right knee. In connection with his claim for service connection for posttraumatic stress disorder, the AOJ was able to confirm that, on August 20 and 21, 1972, the U.S.S. Holt was struck by anti-ship mines. See April 2012 Defense Personnel Records Information Retrieval System (DPRIS) Response. In May 2012, the Veteran underwent a VA examination. He was diagnosed with arthralgia of both knees. The examiner noted the Veteran's reports of the August 1972 injury, his reports of ongoing problems since discharge, and his post-service treatment history, including a 1992 orthoscopic surgery. Ultimately, the examiner opined that it was less likely than not that his right knee disorder was related to his August 1972 in-service injury. The examiner reasoned that his service treatment record were silent for any bilateral knee complaints. The examiner also commented that the Veteran did not have a knee disability, and that his subjective complaints did not correlate with the objective clinical findings and level of activity. A March 2017 private opinion from Dr. D.B. also noted the Veteran's reports of his in-service injury, as well as his 1992 surgery. He was diagnosed with severe degenerative arthritis of the right knee. Dr. D.B. noted that, despite the surgery, the Veteran continued to experience significant problems associated with the right knee. Ultimately, Dr. D.B. opined that his current right knee disorder was likely caused by the in-service accident. After resolving all reasonable doubt in the Veteran's favor, the Board finds that the medical and lay evidence is in relative equipoise as to whether the currently-diagnosed right knee disorder is related to his August 1972 in-service injury. With regard to the first element of service connection, the Board finds that the Veteran has a diagnosed right knee disability. For example, the March 2017 private opinion noted a diagnosis of severe degenerative arthritis of the right knee. With regard to the in-service element of service connection, the Board notes that the Veteran is competent to report his in-service experiences and injuries, including injuring his right knee after his ship was struck by an anti-ship mine. Layno, supra. Furthermore, the August 1972 incident was, at least in part, confirmed by DPRIS in April 2012. Moreover, the Board finds that the reports are consistent with the circumstances of his service. See 38 U.S.C. § 1154(b) (2014). As such, the Board finds that his assertions concerning his in-service injury, and the onset, nature, and progression of his right knee symptoms, are competent and credible lay evidence of such, and the remaining inquiry is whether there is nexus, or link, between his current right knee disorder and his in-service injury. The Board finds that the evidence is in relative equipoise as to whether the currently-diagnosed right knee disorder is related to his in-service injury. The May 2012 and March 2017 opinions are probative as they considered all of the pertinent evidence of record, to include the Veteran's lay statements. The March 2017 opinion relies on the Veteran's lay statements concerning his in-service injury, which the Board finds are competent and credible, as well as his lay statements concerning the onset and continuity of right knee symptoms. In addition, the physician offered a clear conclusion with a supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In addressing lay evidence and determining what, if any, probative value may be attached to such evidence, attention must be directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno, supra. Certainly, the Veteran is competent to report his own symptoms of right knee pain in service and following service. See, e.g., Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The medical history provided by the Veteran is credible, as it has generally been consistent, and it is not contradicted by any inconsistencies that call into question his credibility. Furthermore, the Board finds that the reports are consistent with the circumstances of his service. See 38 U.S.C. § 1154(b). Thus, after careful review of the record and consideration of all lay and medical evidence of record, and after affording all benefit of any doubt to the Veteran, the Board finds that the criteria for service connection for degenerative arthritis of the right knee are met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for degenerative arthritis of the right knee is granted. REMAND Left Knee With regard to the Veteran's left knee, the claims entitlement to service connection for a left knee disorder as directly related to his military service. Specifically, the Veteran's claims that, during active duty service in August 1972, he injured his knee after the ship he was aboard, the U.S.S. Holt, was struck by anti-ship mines. See, e.g., October 2016 Hearing Transcript, pp. 24-25. When the ship was struck, he fell down a flight of stairs, and his right leg went in between the ladder and the stanchion, and his left leg was curled up underneath him on the ladder. Id. at 24. He testified that, following the accident, he experienced chronic left knee pain that has continued to the present. See id. at 26. Alternatively, the Veteran's claims entitlement to service connection for a left knee disorder as secondary to his now-service-connected right knee disability. See September 2010 VA Form 21-526, Veteran's Application for Compensation and/or Pension. In May 2012, the Veteran underwent a VA examination. The examiner opined that his left knee disorder was not related to his military service. The examiner noted his reports of the August 1972 injury, his reports of ongoing problems since discharge, and his post-service treatment history. Ultimately, the examiner opined that it was less likely than not that the Veteran's left knee disorder was related to his August 1972 in-service injury. The examiner reasoned that his service treatment record were silent for any bilateral knee complaints. The examiner also commented that the Veteran did not have a knee disability, and that his subjective complaints did not correlate with the objective clinical findings and level of activity. The Board finds that the evidence of record is insufficient to resolve the Veteran's claims. The May 2012 opinion and supporting rationale fails to reflect any consideration of the Veteran's lay statements concerning the onset and continuity of symptoms associated with his left knee and, instead, relies on the absence of in-service treatment for the left knee. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a VA examination opinion must reflect consideration of lay evidence of both in-service incurrence and/or continuity of symptomatology since service). Moreover, the Board finds that the VA opinion does not provide an adequate rationale. In this regard, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the VA examiner merely relied on the absence of in-service treatment for the left knee. Finally, the examiner failed to address the Veteran's alternative theory of entitlement that his left knee disability is secondary to his now-service-connected right knee disability. Thus, to ensure that an opinion is obtained that adequately considers the Veteran's lay statements and addresses all theories of entitlement, he should once again be scheduled for a new VA examination by a different VA examiner. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (explaining that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Hearing Loss With regard to the Veteran's claim for service connection for right ear hearing loss, he claims that his hearing loss is the result of military noise exposure. Specifically, the Veteran attributes his hearing loss to weapons fire, including both rifle fire from an M16, as well as fire from a 60 caliber mounted machine gun. He also claims exposure to helicopter engines. See October 2016 Hearing Transcript, pp. 6-9. He claims that he experienced hearing problems in both ears during service, and that his hearing progressively worsened over time. See e.g., id. at 15-17. In connection with his claim, the Veteran underwent a VA examination in July 2012. Although a hearing loss disability in accordance with 38 C.F.R. § 3.385 (2017) was noted in both ears, the examiner concluded that he could not provide an opinion without resort to mere speculation, given the Veteran's post-service noise exposure. The examiner discussed a number of significant studies, and stated that, without evidence of the Veteran's in-service audiometric results, it would be mere speculation as to whether his hearing loss was related to his military service. The Board notes that the Veteran's service treatment record from his period of active duty, as well as his annual examinations from his time in the Reserves and National Guard, do not include audiometric results and merely note normal whisper testing. In February 2013, the Veteran's private audiologist noted his active duty noise exposure. The audiologist opined that the Veteran's bilateral hearing loss was more likely than not related to his military noise. No further rationale was provided. In February 2015, the Veteran underwent another VA examination. In the notes to the examiner, the AOJ noted that in-service noise exposure was conceded based on the circumstances of his service. The examiner noted the Veteran's in-service noise exposure and post-service noise exposure, including occupational and recreational noise exposure. The examiner ultimately opined that his right ear hearing loss was less likely than not related to his active duty service. The examiner pointed to a May 1986 private audiogram which revealed normal hearing in the right ear, and mild hearing loss in the left ear. The examiner also discussed the findings of a 2002 study that concluded that hearing loss due to noise exposure did not progress. The examiner also opined that the Veteran's hearing loss pre-existed his service, but noted that this conclusion was mere speculation given the fact that the Veteran's service treatment records did not include any audiometric results. Finally, noting that the Veteran was awarded a marksman badge for his M16, the examiner stated that his use of a rifle would cause noise exposure to his left ear, but not his right ear. Initially, the Board notes that Veteran is competent to report his in-service noise exposure and symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, as noted in the February 2015 VA examination, the AOJ conceded in-service combat noise exposure on the basis of his military occupational specialty as a hull maintenance technician, his receipt of a combat action badge, and his service aboard the U.S.S. Holt. Moreover, the Veteran's reports of noise exposure from weapons fire from an M16 and a 60 caliber mounted machine gun, and exposure to noise from helicopter engines is consistent with the circumstances of his service. 38 U.S.C. § 1154(b). As such, the Board finds that in-service noise exposure has been established. The Board finds that the evidence of record is insufficient to resolve the Veteran's claims. The February 2015 opinion and supporting rationale fails to reflect any consideration of the Veteran's lay statements concerning the onset and continuity of symptoms associated right ear hearing loss and, instead, relies on the absence of in-service audiometric results demonstrating hearing loss. See Dalton, supra. Moreover, the Board finds that the February 2015 VA opinion and the February 2013 private opinion do not provide clear conclusions and/or adequate rationale. In this regard, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Here, the VA examiner notes that the Veteran's hearing loss preexisted service, but then stated that an opinion could not be provided without resort to mere speculation. The VA examination also relied solely on the absence of in-service right ear hearing loss. The VA examiner also seemed to rely solely on rifle exposure, and did not address the significance, if any, of the Veteran's noise exposure from the 60 caliber mounted machine gun or helicopters. With regard to the February 2013 private opinion, the audiologist failed to provide any rationale to support her conclusion. Moreover, the audiologist did not address the significance, if any, of the 1986 audiogram which showed that the Veteran's right ear hearing was within normal limits at that time. Thus, to ensure that an opinion is obtained that adequately considers all pertinent evidence, including the Veteran's lay statements and his post-service audiograms, he should once again be scheduled for a new VA examination by a different VA examiner. See Barr, supra. With regard to the Veteran's claim for an initial compensable rating for left ear hearing loss, the record shows that his most recent examination to assess the nature and severity of his hearing loss was in February 2015. However, during his October 2016 hearing, the Veteran indicated that his hearing was "gradually getting worse and worse." October 2016 Hearing Transcript, p. 41. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggerman v. Brown, 5 Vet. App. 281 (1993). Not only is this last examination remote, but the Veteran has also asserted that his condition has worsened since the previous VA examination. Given the foregoing, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim for a higher rating left ear hearing loss. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Moreover, his claim for a higher rating for left ear hearing loss is inextricably intertwined with the issue of service connection for right ear hearing loss, since any decision on the issue of service connection for right ear hearing loss may affect his claim for a higher rating. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the Veteran's claim for the second issue). On remand, the AOJ should obtain any outstanding VA treatment records. Additionally, the Veteran should be provided the opportunity to identify any additional private treatment records that are relevant to his claim. Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's VA treatment records. 2. The Veteran should be given an opportunity to identify any additional healthcare providers. After securing any necessary authorizations from him, obtain all identified treatment records. All reasonable attempts should be made to obtain any identified records. 3. If any records, either VA or non-VA records, cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After completing the above development, schedule the Veteran for a new VA examination to determine whether his left knee disorder is related to his military service, or whether it is secondary to his now-service-connected right knee disorder. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. Following a review of the record, to include the Veteran's lay statements, the examiner should answer the following questions: a) For any currently-diagnosed left knee disorder, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such is related to his military service, to include his reported August 1972 injury. b) For any currently-diagnosed left knee disorder, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such is caused by his service-connected right knee disorder. c) For any currently-diagnosed left knee disorder, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such is aggravated by his service-connected right knee disorder. If the examiner determines that there is aggravation, the examiner should state, to the best of their ability, the baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The opinion provided must reflect consideration of the Veteran's lay statements concerning his in-service experiences and injuries, including his description of left knee symptoms following the August 1972 injury. Furthermore, the examiner must address each question above. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any evidence of a left knee disorder in the Veteran's service treatment records. 5. After completing the above development, schedule the Veteran for an appropriate VA audiology examination by an examiner other than the one who performed the February 2015 VA examination. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner. The examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner should address the following: a) The examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right ear hearing loss had its onset during, or is otherwise related to, his active duty service, to include his conceded in-service noise exposure. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding in-service noise exposure and continuity of symptoms, which the Board finds to be credible, and the opinion should reflect such consideration. The examiner should also address the types of noise exposure experienced, including rifle fire, fire from a 60 caliber machine, and helicopter noise. Finally, the examiner should address the significance, if any, of the results of the Veteran's post-service audiograms and whether the hearing loss is caused or aggravated by the Veteran's service connected left ear hearing loss. A clearly-stated rationale for any opinion offered should be provided and must not be based on the lack of any evidence of hearing loss in the Veteran's service treatment records, as audiometric results were not recorded. b) Following a review of the record, to include the Veteran's statements, the examiner should describe the functional effects caused by the Veteran's hearing loss has on his activities of daily living. All testing results, along with a complete, clearly-stated rational for any conclusion reached, must be provided. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated. If the benefits sought on appeal are not granted, the Veteran and his attorney should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the appeal should be returned to the Board for further appellate consideration, if otherwise 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 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 (2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs