Citation Nr: 18147661 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-00 080 DATE: November 5, 2018 ORDER Entitlement to service connection for a lower back condition is denied. Entitlement to service connection for a bilateral ankle condition is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a bilateral shoulder condition is remanded. Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a lower back condition. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a bilateral ankle condition. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a hearing loss disability as defined by VA regulations. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a bilateral ankle disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2008 to July 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. During the course of this appeal, the Veteran testified via live video conference at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2018. A transcript of that hearing is associated with the claims file. At the time of the hearing, the record was held open for an additional 90 days to permit the Veteran to submit additional evidence. That additional evidence has been received. Service Connection Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 1. Entitlement to service connection for a lower back condition The Veteran has claimed service connection for a lower back condition. 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, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of lower back condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s postservice treatment records do not show that he has been given a diagnosis for the lower back. On February 2013 VA examination, the examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of back pain and mild muscle tenderness to palpation to the muscles of his lower back that was not significant enough to render a diagnosis of a low back condition. Further, at the hearing, the Veteran testified that he viewed his back condition as more of a discrete event where he threw his back out, that this event may have occurred while he was out of service, and that there was no real issue related to his back. Consequently, the Board finds that there is no current disability of the Veteran’s lower back. 2. Entitlement to service connection for a bilateral ankle condition The Veteran has claimed service connection for a bilateral ankle condition. 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, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a bilateral ankle condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s postservice treatment records do not show that he has been given a diagnosis for the bilateral ankles. On February 2013 VA examination, the examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of pain and swelling in the bilateral ankles, he did not have a diagnosis of a left or right ankle disability. The Board notes that the Veteran did suffer a sprained right ankle while in service, and reported ankle pain when he established care at a VA facility in October 2012, it does not appear that these reports have led to a diagnosis or identification of a disability of either ankle. Further, the Veteran testified at the hearing that he did not have any issues with his ankles. Consequently, the Board finds that there is no current disability of the Veteran’s bilateral ankles. 3. Entitlement to service connection for bilateral hearing loss. The Veteran has claimed service connection for bilateral hearing loss based on his exposure to noise trauma in service. 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, event, or disease. A hearing loss disability is defined by VA 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, or 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. Here, the only hearing test of record during the appeal period comes from a February 2013 VA examination, which provided the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 20 15 LEFT 5 10 15 5 10 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. These results do not meet the definition of a hearing loss disability as defined by VA regulation and the Veteran has not submitted any objective evidence to show that he currently has a hearing loss disability. Therefore, the Board concludes that the Veteran does not have nor has he had a hearing loss disability as defined by VA regulations at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral shoulder condition and a bilateral knee condition. The February 2013 VA examiner opined that the Veteran’s claimed shoulder and knee conditions were not related to his service because no conditions of the shoulders or knees could be identified. However, subsequent MRIs from July 2018 document bilateral shoulder impingement and bilateral chondromalacia patella. Another VA examination for a medical opinion is thus needed regarding whether these conditions are related to the Veteran’s in-service diagnosis of impingment in his left shoulder in October 2011 and his in-service complaints of knee pain for which he was placed on a profile in April 2012. 2. Entitlement to service connection for tinnitus is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for tinnitus because no VA examiner has opined whether the Veteran’s tinnitus was aggravated by his in-service noise exposure, though the February 2013 VA examination appears to acknowledge that this is at least possible. Significantly, the Veteran indicated at the February 2013 VA examination that his tinnitus preexisted his service but was aggraved by his exposure to noise trauma in service. The Veteran’s service treatment records do not show that he ever complained of or was treated for tinnitus in service, to include when he was examined for enlistment. Therefore, the Veteran is presumed to have been in sound condititon when he entered into service, and the burden then shifts to the Government to rebut the presumption of soundness. The presumption of soundness may be rebutted only by clear and unmistakable evidence that the Veteran’s disability both (1) preexisted his service and (2) was not aggravated by his service. Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The clear-and-unmistakable-evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Insofar as this question has not yet been adequately addressed by a VA medical examiner, the Board concludes that a new VA examination for a medical opinion regarding the Veteran’s tinnitus is necessary. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral shoulder impingement and chondromalacia patella. The examiner must opine whether these disabilities are at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s in-service shoulder and knee complaints (Continued on the next page)   2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology his tinnitus. If the examiner finds that the Veteran’s tinnitus clearly and unmistakably preexisted his service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service noise exposure. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel