Citation Nr: 18141484 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-09 238 DATE: October 10, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a right hip disability, to include as secondary to a service connected right knee disability, is granted. Entitlement to service connection for amputation of the second, third, and fourth fingers of the left hand, to include as secondary to a service-connected right knee disability, is granted. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disability is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression, to include as due to service-connected disabilities, is granted. REMANDED Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. The evidence of record does not show a current bilateral hearing loss disability for VA purposes. 2. It is at least as likely as not that the Veteran’s right hip disability was caused by his service-connected right knee disability. 3. It is at least as likely as not that the Veteran’s amputation of the second, third, and fourth fingers of the left hand is causally related to the Veteran’s service-connected right knee disability. 4. It is at least as likely as not that the Veteran’s low back disability was caused by his service-connected right knee disability. 5. It is at least as likely as not that the Veteran’s depression was caused by his service-connected orthopedic disabilities CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a right hip disability, to include as secondary to a service-connected right knee disability, have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for amputation of the second, third, and fourth fingers of the left hand, to include as due to a service-connected right knee disability, have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disability, have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression, to include as due to service-connected disabilities, have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1982 to February 1986. Direct Service Connection The Veteran seeks service connection for bilateral hearing loss, a right hip disability, amputation of the second, third, and fourth fingers of the left hand, a low back disability, and a psychiatric disability. For the following reasons, service connection is not warranted for bilateral hearing loss; however, service connection is warranted for the rest of the above disabilities. Bilateral Hearing Loss Service connection for bilateral hearing loss is denied because there is no current disability, according to VA regulations. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). For these chronic diseases, an alternative method of establishing the second and third element of service connection is through demonstrating continuity of symptomatology – if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Moreover, even if a disability is not subject to presumptive service connection, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Service connection may only be granted for a current disability, and therefore, when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, while the Board concedes in-service acoustic trauma due to the Veteran’s MOS, service connection for bilateral hearing loss is not warranted because the Veteran does not have bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. Specifically, medical evidence, including the Veteran’s most recent VA examination in December 2011, demonstrates that the Veteran does not have sufficient bilateral hearing loss, for VA purposes under 38 C.F.R. § 3.385. This is because he did not have auditory thresholds in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz of 40 dB or greater; or auditory thresholds for at least three of the above frequencies of 26 dB or greater; or speech recognition scores less than 94 percent. Notably, at the Veteran’s most recent VA examination, he only had auditory thresholds above 25 dB at 4000 Hz in the right ear, and 3000 Hz, 4000 Hz in the left ear. Moreover, at December 2011 VA examination, his speech recognition scores were 94 percent in both ears. Therefore, service connection for bilateral hearing loss is not for application; the evidence fails to demonstrate that a current disability exists, as the Veteran does not have compensable hearing loss. See 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the Veteran does not have current hearing loss based on the evidence of record, the Veteran’s claim must be denied. Secondary Service Connection In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Based on the evidence of record, service connection is warranted for the Veteran’s right hip, low back, and psychiatric disorders; the evidence shows that these disabilities are related to at least one of the Veteran’s service connected disabilities. The preponderance of the competent and credible evidence of record is against a finding that the Veteran’s left hand finger amputations resulted from right knee instability. First, a claim for secondary service connection does not preclude a claim based on direct service connection. In this vein, the Board concedes that the Veteran has current right hip arthritis, residuals of amputation of fingers, and depression. The Board also concedes that despite the lack of physical symptoms, the Veteran has a low back disability as well. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Next, the Veteran’s service treatment records, including his ETS examination report dated February 1984, do not reflect treatment in service for any of the disorders on appeal. Moreover, the Veteran does not contend, nor does the record reflect, that his right hip, left hand, low back, and psychiatric symptoms have presented since service. Therefore, as to all four of these disabilities, continuity is not established based on either the competent clinical evidence, or the Veteran’s statements. Finally, despite the lack of a direct nexus to service, the preponderance of the evidence demonstrates that the Veteran’s disabilities of the right hip, low back and psychiatric disorders are proximately due to, the result of, or aggravated beyond their natural progression by his service-connected disabilities. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Indeed, the medical evidence shows that the Veteran’s right hip, low back, and psychiatric disabilities are medically related to his service connected disabilities – foremost among them his right knee disability. Right Hip The Veteran’s right hip disability is etiologically connected to his right knee disability. The Veteran reported to his December 2011 VA examiner that his right hip pain began in about 2001. On in-depth questioning, the Veteran stated to his May 2014 VA examiner that the pain was primarily lateral. X-ray imaging showed arthritis, albeit minimal, in both hip joints. The examiner diagnosed typical trochanteric tendonitis, which he felt had likely been left untreated since onset. Specifically, the examiner opined that this symptomatology was a result of the mechanics of the Veteran’s “very antalgic” gait from his right knee disability. More stress and loading was put on the right hip muscles trying to protect the knee, resulting in a right hip disability developing over time. Thus, the evidence shows a nexus between the Veteran’s right knee disability and his right hip disability The Board takes note of the December 2011 VA examiner’s opinion that the Veteran’s right hip disorder is not caused or aggravated by his right knee disability. This opinion is based merely on the absence of evidence of compensatory mechanics between the right knee and the right hip. The May 2014 opinion, on the other hand, notes tangible evidence supporting a causation argument, and logically deduces the presence of a nexus between the service connected right knee disability and the disability on appeal. At the very least, the evidence both for and against service connection is in equipoise. That is, the evidence weighing in favor of the claim is equally balanced with the evidence weighing against the claim. As such, the Board must resolve doubt in the Veteran’s favor. Accordingly, service connection for a right hip disability is warranted. Low Back Disability The Veteran’s low back disability is etiologically connected to his right knee disability. A low back disability was not noted upon the Veteran’s entrance in February 1982. The Veteran, according to a non-VA radiology report dated December 2007, suffers from sudden-onset degenerative changes of the lumbar spine. However, a May 2013 Back Conditions Disability Benefits Questionnaire (DBQ) states that the symptoms onset in approximately 1993, and that symptoms have recently increased. Regardless of the onset date, moreover, the Veteran has a current low back disability. His treating practitioner, Dr. N.F., opines that given a “distinctive link” between a knee joint and a thoracolumbar spine, the Veteran’s compensatory effects of the Veteran’s right knee disability caused degenerative neuromuscular and skeletal changes of the Veteran’s lumbar spine. By contrast, a September 2013 DBQ asserts that there is no basis in medical fact to support such a link. In support of his claim, the Veteran provided a well-reasoned article from Dr. I.H., former Chief of Orthopedic Surgery at a major hospital in Canada. In this article, Dr. H. explains that in patients with a chronic limp, such as the Veteran, the repetitive pull of the trunk musculature may, in time, transmit increased force across the discs of the spine, resulting in increased wear and tear to the disc segments. Although this article does not address the Veteran’s specific condition, it is nevertheless consistent with the opinion of Dr. N.F. It is also consistent with the lay statements of the Veteran and his wife dated September 2013, indicating that the Veteran’s low back symptoms started after the onset of his right knee disability. At the very least, the evidence both for and against service connection is in equipoise. That is, the evidence weighing in favor of the claim is equally balanced with the evidence weighing against the claim. As such, the Board must resolve all doubt in the Veteran’s favor. Accordingly, service connection for a low back disability is warranted. Psychiatric Disability to Include Depression The Veteran, through his representative, asserts that his psychological condition is related to the pain from his service-connected orthopedic disabilities, mentioned above. The Board agrees, and finds that the Veteran’s psychiatric symptoms are at least as likely as not due to pain resulting from his service-connected disabilities. The evidence of record indicates that the Veteran sought treatment for a psychiatric disability as early as November 2011. The Board notes that the Veteran’s entrance examination was clear of any psychiatric symptoms. Moreover, the Veteran has provided competent and credible evidence that his onset of symptoms occurred commensurate with his knee and back pain. He reported to his VA mental health care providers in records dated August 2015 and October 2015 that his depression is primarily due to pain from his back and knee. This statement is corroborated by indications in December 2015 that he stays indoors most of the time due to his back and knee pain. Further, a mental health professional, in an outpatient note dated July 2015, explicitly opines that the Veteran’s back and knee pain is a significant factor in his depression. See also, March 2016 mental health telephone contact note. Accordingly, the weight of the evidence indicates that secondary service connection is warranted for the Veteran’s depression. Left Hand Resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s left hand disability is etiologically connected to his right knee disability. The Veteran was incarcerated prior to the period on appeal, from 1996 to August 2011. In a May 2011 statement, the Veteran claims that he was operating a table saw at a corrections facility in Pendleton, Oregon, when his right knee gave out. He started to fall, resulting in his reaching instinctively for support with his left hand and finding the still-running table saw. This statement is corroborated by a problem list dated 1998, while the Veteran was still incarcerated. This list was generated by the Oregon Department of Corrections, and includes the amputation of three fingers. The 1998 operative report notes that the injury occurred from the operation of a table saw; however, the report does not further elaborate on the specific event that led up to the injury. Thus, the issue is whether the Board finds the Veteran’s self-reported history credible. The Veteran is competent to report that his right knee gave way, as this is an observable event capable of lay observation. Additionally, a review of the medical records prior to the 1998 injury consistently show that the Veteran reported right knee instability despite negative varus and valgus stress tests. For example, an April 1986 VA orthopedic examination notes the Veteran’s self-report of right knee instability and knee buckling with any sort of lateral movement. Additionally, the Veteran reported chronic right knee pain with “some collapsing” at an October 1990 VA examination. A January 1992 orthopedic progress note indicates that the Veteran reported continued problems following arthroscopic surgeries to repair a torn meniscus in 1987 and 1988. Since then, the Veteran has reported, inter alia, that his right knee “goes out from under him.” The Veteran subsequently underwent a right knee arthroscopic debridement in July 1992. Although there are no treatment records reflecting complaints of instability around the time of the 1998 prison injury and resultant amputation of three fingers of the left hand, the Veteran’s assertions that his right knee gave way to cause the injury are consistent with his statements in 1986, 1990, and 1992. As there is no reason to doubt the Veteran’s credibility in this regard, the Board must resolve all reasonable doubt in the Veteran’s favor. Accordingly, service connection for amputation of three fingers of the left hand is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Considering the above discussion, the Board concludes that the preponderance of the evidence weighs in favor of the claim for service connection for a right hip disorder, a back disorder, a psychiatric disorder, and a left hand. The appeal is therefore granted as to those disorders. As to the claim of service connection for bilateral hearing loss, the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. The Veteran contends that his current left knee disability is related to his symptoms in service. Unfortunately, a remand is required to fully assess this issue. The Veteran has a current diagnosis of degenerative joint disease. Further, a left knee study dated August 2013 notes mild tricompartmental chondrosis, as well as a large loose body within the intercondylar notch and small suprapatellar joint effusion. The Veteran also has knee symptoms documented in September 2003, September 2004, and October 2011. Next, service treatment records show that the Veteran complained of left knee symptoms in service, and was even diagnosed with chondromalacia in January 1983, during active service. VA examinations, including those dated April 1986, May 1986, and October 1990, were negative for arthritis. However, they show that the Veteran continued to seek treatment for left knee symptoms after separation. The symptoms, including pain, grinding, and patellofemoral crepitus, were found to affect the cartilage of the left knee. Moreover, other evidence of record, including records dated September 2003, September 2004, and September 2011, is consistent with the gradual onset of left knee chondrosis and /or chondromalacia. This similarity of symptoms indicates a possibility that the Veteran’s current symptoms are related to service. VA’s duty to assist requires VA to provide an adequate examination if there is any indication that the Veteran’s disability may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes the Veteran’s December 2011 VA examination of the left knee, in which the examiner opines that it is less likely than not that the Veteran’s left knee condition is secondary to the right knee condition. However, this opinion does not address direct service connection. Accordingly, a new VA examination is warranted to determine whether a relationship exists between the Veteran’s in-service symptoms and current disability. The matter is REMANDED for the following action: 1. Obtain all treatment records from the VA Medical Center in Portland Oregon since March 2016, as well as any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit records of this treatment. 2. Schedule the Veteran for a VA examination by a physician who has sufficient expertise in knee disorders, to determine the nature, extent, onset and etiology of his left knee chondromalacia, as well as any other knee disorder identified upon examination. The claims file must be provided to the examiner for review. All indicated studies deemed necessary by the examiner should be performed, and all findings of these tests should be reported in detail. The examiner should comment on the Veteran’s treatment records from April 1986, May 1986, and October 1990 for knee symptoms. She or he must discuss whether the Veteran’s knee pain during and after service is indicative of his current left knee chondromalacia. L. B. CRYAN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel