Citation Nr: 1805261 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-15 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral knee disabilities. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a disability related to grinding of teeth. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Air Force from May 2000 to October 2011. He had additional Air National Guard service from 2011 to 2015 (as last updated in the record). Importantly, he also attended the U.S. Air Force Academy from June 1995 to May 2000 (his commissioning was in May 2000). These issues come before the Board of Veterans' Appeals (Board) from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran lives in Kansas, and his claim is currently before the Wichita, Kansas RO. The issues of entitlement to service connection for bilateral hearing loss and a disability related to grinding of teeth 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 Veteran attended the U.S. Air Force Academy from June 1995 to May 2000. 2. The Veteran's right and left knee were injured during his time at the U.S. Air Force Academy, both while practicing for the gymnastics team. CONCLUSION OF LAW Bilateral knee disabilities were incurred in active service. 38 U.S.C. §§ 101 (21)(D) 1110, 5107 (West 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In light of the favorable decision regarding the issues of entitlement to service connection for bilateral knee disabilities, the Board finds that no further discussion of VA's compliance with its duties to notify and assist is warranted. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Pertinent to this claim, "active duty" means service at any time as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy. See 38 C.F.R. § 3.6(b)(4). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). Factual Background and Analysis The Veteran is seeking service connection for residuals of right and left knee injuries he suffered during his time at the U.S. Air Force Academy. On his notice of disagreement with his initial denial, the Veteran pointed out that his knees were both injured during gymnastics training/practice and that he had three surgeries on his knees during his time at the U.S. Air Force Academy. The Veteran correctly noted that these disabilities should be service connected. The Veteran's service treatment records include his medical history reported prior to his attendance at the U.S. Air Force Academy. The March 1995 medical history included a history of broken bones involving his left elbow and right long finger. He did not indicate a history of problems with his knees. In May 1996, the Veteran injured his right knee when he fell off the high bar the day before. The handwriting is difficult to make out, it appears to indicate he had a mild tear, but this Board member cannot make out what was torn. A September 1997 Air Force Commission and Flying Training Examination included that the Veteran had a left knee injury without effusion. He had a normal range of motion, and negative Lachman's and pivot shift tests. In December 1997, the Veteran hyperextended his left knee landing from "the rings" in the cadet gym. He was unable to bear weight due to pain. His left knee had effusion and decreased range of motion. An x-ray of the knee was negative. He was later assessed with a left ACL (anterior cruciate ligament) tear. He had reconstructive knee surgery for his left ACL in January 1998. A February 1998 medical board noted that the Veteran had surgery on his left knee following an ACL injury. The injury required substantial physical therapy on top of his other responsibilities. He was recommended for a "medical turnback through the rest of the semester and the summer activities and then to return for academics in the fall of 98." Records showed continued treatment for his left knee through 1998. By August 1998, he had "occasional pain" but without swelling or giving way. In November 1998, he was given a waiver for potentially disqualifying conditions (ACL repair with retained orthopaedic hardware). He was cleared for all activities, and given a waiver for commissioning. In March 1999, the Veteran injured his right knee. An MRI showed a tear of the anterior body of the lateral meniscus, LCL strain, and moderate joint effusion with Baker's cyst. His right knee injury also occurred during gymnastics training; he landed on his right leg from a vault and heard a crunch. He underwent right knee arthroscopy with a partial lateral meniscectomy in March 1999. The Veteran re-injured his left knee in March 2000. He was assessed with a torn ACL with possible torn meniscus. He underwent ACL surgery on his left knee for a second time in April 2000. During active service in the U.S. Air Force, the Veteran continued to report his prior history of knee injuries and surgeries. In January 2008, he was assessed with joint pain localized in the knee. He was able to do his physical training and his examination was "benign." The examiner noted that his left knee pain was "likely due to overuse injury due to prior surgical meniscal change and skiing." In March 2010, the Veteran complained of left knee joint pain in the patellofemoral region, which increased with ascending stairs. It is not clear if an assessment was made as the documents are out of order. On his April 2011 separation medical history, the Veteran reported his three knee surgeries between 1998 and 2000. He had a normal medical examination, but it included his complaint of bilateral knee pain. The record does not contain the Veteran's ongoing Air National Guard service treatment records; however, they are unnecessary as the record currently provides enough information to grant service connection. As detailed above, the Veteran entered the U.S. Air Force Academy without any knee disabilities. He injured both knees on a number of occasions as a cadet, which included the need for three surgeries-two on his left knee (ACL twice with retained hardware and meniscus), and one on his right (meniscus and arthroscopy). He continued to complain of some knee pain in service, although limited. He did report knee pain on his separation medical history and examination. The Veteran claimed entitlement to service connection for his knee disabilities prior to his separation from service. As such, the Veteran's record shows he had in-service injuries. In December 2011, the Veteran was afforded a VA examination of his knees. The examiner diagnosed the Veteran with moderate degenerative arthrosis of both knees per x-rays. He also had diagnosis of a history of ACL injures x2 status post reconstruction x 2 (1998 and 2000) and meniscal tear status post meniscectomy (2000) of his left knee, and history of meniscal tear of the right knee in 1999. As such, the record shows that the Veteran has current bilateral knee disabilities. In sum, the Veteran injured both knees during "active duty" as a cadet at the U.S. Air Force Academy, and those in-service injuries resulted in surgery and current disabilities of bilateral knee arthrosis. Entitlement to service connection for bilateral knee disabilities is warranted. ORDER Entitlement to service connection for bilateral knee disabilities is granted. REMAND Although the Veteran managed to appear for his December 28, 2011 VA examinations, he missed his dental VA examination (December 20, 2011), and hearing loss VA examination (December 6, 2011). In June 2012, after his claims for hearing loss and teeth grinding were denied, the Veteran called and stated that he called in March 2012 and requested that his examinations be rescheduled. He stated that he was on TDY with the Air Force and unavailable during the previously scheduled examinations. He stated he was willing to appear for these examinations. Also in June 2012, the Veteran submitted a notice of disagreement with his claims for hearing loss and teeth grinding, and again requested he be rescheduled for a VA examination because he was on TDY. He stated he tried to reschedule the examinations himself, but that his claims continued until they were denied, without a rescheduling of the examinations. The May 2014 Statement of the Case noted that the Veteran failed to report for his scheduled VA examinations, and that he had not shown good cause as to why he could not attend the scheduled examinations. The Board disagrees. It appears the Veteran had good cause (on TDY when the examinations were scheduled), and that he attempted to reschedule the examinations with the RO and VAMC on at least two occasions prior to his claim being denied. In a June 2014 Supplemental Statement of the Case (SSOC), the RO reiterated that the Veteran did not show good cause for why he missed his scheduled VA examinations, despite his notice of disagreement containing such information. The June 2014 SSOC also noted the Veteran's claim that he served from 1995 to 2000, and that his DD 214 of record only showed that he served from May 2000 to October 2001. Again, the Board notes that the Veteran's notice of disagreement and substantive appeal, along with his service treatment records, included that he served in the U.S. Air Force Academy from 1995 to 2000, and his DD 214 of record showed he served from May 2000 to October 2011. The SSOC indicated that the RO was missing some of the Veteran's service treatment records, including his records from his period as a cadet. The record indicates that the Veteran's cadet service treatment records were in the claims file at the time of the May 2014 SOC; however, sometimes the receipt date contained in the electronic records is inaccurate and unfortunately there is no date stamp on the records. Following the June 2014 SSOC, the RO received documents related to the Veteran's Air National Guard service, to include that he started National Guard service in October 2011. The Veteran was never rescheduled for his hearing loss and dental VA examinations. On remand, these examinations must be rescheduled. A review of service treatment records includes that the Veteran was given a hard occlusal guard in June 2008 due to teeth grinding. The Veteran did not have pain, but his wife had complained he grinded his teeth in his sleep. An August 2009 dental record also noted grinding on molars and that the Veteran used a mouthguard. An April 2011 dental record noted --"maxi. alg. imp. for sportguard." Additionally on his separation medical history and examination, the Veteran complained of "subjective" hearing loss. The examiner noted that his hearing test showed his hearing was within normal limits. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the Veteran's Air National Guard service treatment records. 2. Schedule the Veteran for a VA hearing loss examination. Following a review of the record, and interview and examination of the Veteran, the examiner should provide the following opinion: If the Veteran has bilateral hearing loss disability for VA purposes, then is it at least as likely as not (50/50 probability or greater) that the Veteran has bilateral hearing loss related to his military service? A rationale must be provided for all opinions expressed. 3. Schedule the Veteran for a VA dental examination. Following a review of the record, and interview and examination of the Veteran, the examiner should provide the following opinion: Does the Veteran have a disability which either causes him to grind his teeth, or has a disability as a result of his teeth grinding? Please list any symptoms related to his teeth grinding (e.g. pain). Is it at least as likely as not (50/50 probability or greater) that a disability related to teeth grinding is due to or began during the Veteran's active service? The examiner should note that the Veteran was given a mouthguard in 2008 for teeth grinding. A rationale must be provided for all opinions expressed. 4. Readjudicate the claims on appeal. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto The Veteran and his representative have 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). ______________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs