Citation Nr: 18151182 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-08 588 DATE: November 16, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral shin splints, and claims of entitlement to service connection for a bilateral knee disability, a bilateral hip disability, and a low back disability, all included as secondary to bilateral shin splints, are reopened. Entitlement to service connection for bilateral shin splints is denied. Entitlement to service connection for a bilateral knee disability, to include as secondary to bilateral shin splints, is denied. REMANDED Entitlement to service connection for a low back disability, to include as secondary to bilateral shin splints, is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to bilateral shin splints, is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for an upper back/neck disability is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A September 2003 rating decision denied the Veteran’s claims of entitlement to service connection for bilateral shin splints, a bilateral knee disability, a bilateral hip disability, and a low back disability, the latter three as secondary to bilateral shin splints. The Veteran did not timely appeal the denial, nor did he submit additional evidence for consideration within one year. 2. Evidence received since the September 2003 rating decision is not cumulative or redundant of the evidence of record, relates to unestablished facts, and raises the reasonable possibility of substantiating the claims. 3. The Veteran does not have a current disability manifested by shin splints that was caused by or aggravated by active duty service. 4. The Veteran’s bilateral knee disability was not caused by or aggravated by his military service or by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral shin splints have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for a bilateral knee disability, to include as secondary to bilateral shin splints, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1967 to December 1970 and from January 1976 to December 1979. In August 2017, the Veteran testified before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. New and Material Evidence In general, RO decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. “New” evidence is existing evidence not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s compensation claims for bilateral shin splints, bilateral knees, bilateral hips, and a low back disability were originally denied in a September 2003 rating decision. The Veteran was notified of the September 2003 denial but did not appeal or submit additional evidence within the one-year appeal period. Therefore, that decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the September 2003 rating decision, the regional office considered the Veteran’s service treatment records and a May 2003 VA examination. The denial of the Veteran’s claim for bilateral shin splints was based on no current diagnosis or residuals of this condition. The denial of the claims for bilateral knees, bilateral hips, and low back were based on a lack of evidence of a relationship between these disabilities and service, including the Veteran’s in-service diagnosis of bilateral shin splints. Since the September 2003 rating decision, the Veteran has submitted a lay statement from his wife detailing a bicycle accident she witnessed during the Veteran’s active duty service and additional private medical records. Military personnel records, updated VA treatment records, and the Veteran’s hearing transcript have also been associated with the claims file. This evidence is new, material to previously unestablished facts, and raises the reasonable possibility of substantiating the Veteran’s claims. Boggs v. Peake, 520 F.3d 1330 (2008). Therefore, these claims are reopened. Service Connection Service connection may be established for a disability resulting from injury or disease incurred in or aggravated during active service. 38 U.S.C. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in- service. 38 C.F.R. § 3.303 (d). Generally, to establish service connection 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 U.S.C. §5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral shin splints The Veteran maintains that he is entitled to service connection for bilateral shin splints. He states that he was diagnosed with bilateral shin splints during service and has continued to have problems with his shins since that time. Service treatment records (STRs) indicate that the Veteran complained of and was treated for recurrent bilateral shin splints during service. The Veteran was provided a VA examination in May 2003. There, the examiner noted the Veteran’s in-service treatment for shin splints. He observed that since discharge the Veteran had not complained of any shin splint or shin discomfort, nor did he complain of any problems with his shins during the physical examination provided at that time. The examiner ultimately found that the Veteran did not have bilateral shin splints or residuals of the bilateral shin splint disability seen in service. Post-service VA and private medical records do not reveal complaint, treatment, or diagnosis of a bilateral shin disability or residuals of the bilateral shin disability seen in service. The Board finds that service connection for bilateral shin splints must be denied. Service connection is not warranted when there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Current means near the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). Disability “refers to the functional impairment of earning capacity.” Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Apr. 3, 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). The Board acknowledges that the Veteran is competent to report experiencing continued pain in his shins. He is not, however, competent to diagnose a shin disability. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Further, even assuming the Veteran did continue to experience symptoms of a bilateral shin disability since service, evidence of evidence of continuity only applies for the conditions explicitly recognized as “chronic” under 38 C.F.R. § 3.309 (a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As bilateral shin splints are not a chronic disability, continuity of symptomatology cannot establish entitlement to service connection under the provisions of 38 C.F.R. § 3.303 (b). As there is no competent medical evidence diagnosing the Veteran with a bilateral shin disability, the preponderance of the probative evidence weighs against the claim. The doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. 2. Entitlement to service connection for a bilateral knee disability, to include as secondary to bilateral shin splints The Veteran maintains that he should be service-connected for a bilateral knee disability, to include as secondary to bilateral shin splints. He asserts that he injured his knees during service, either by falling on ice when repairing vehicles, or by placing additional weight on his knees when his shins gave him problems. The Board initially turns to whether the Veteran is entitled to service connection for a bilateral knee disability on a direct basis. The Veteran’s STRs are silent for complaint, treatment, or diagnosis of a bilateral knee disability. Post-service medical records indicate that the Veteran injured his right knee in November 1996 while riding an ATC vehicle. He re-injured his right knee in September 1999. There is no evidence of a specific left knee injury. The record reflects that he has been treated for pain in both knees since the 1990s and has been diagnosed with degenerative joint disease in both knees. In May 2003, he was provided a VA examination in conjunction with his compensation claim. The claims file was reviewed prior to the examination. There, the Veteran reported sharp, constant daily pain in his knees over the past seven years that worsened after prolonged periods of walking and standing. The examiner performed a physical examination before ultimately finding that the Veteran’s history was more than likely suggestive of mild to moderate degenerative joint disease, although he found that the Veteran had full range of motion, no laxity to any of his examined ligaments, no cartilaginous internal derangements, was neurovascularly intact, and had full motor strength. He determined that the Veteran’s bilateral knee disability was not related to his bilateral shin splints. The examiner found that the Veteran’s knee discomfort was related to his obesity and his bilateral pes planus disability. The Board finds that service connection for a bilateral knee disability is not warranted on a direct or secondary basis. Regarding direct service connection, while there is evidence of a current disability, there is no objective evidence of an in-service injury or event. The Veteran is competent to report the onset of bilateral knee pain on active duty. However, the Board finds that the suggestion of onset of symptoms during active duty are not credible given the following: there are no documented complaints or findings during the Veteran’s active duty, report of separation examinations reflect normal clinical evaluations of the Veteran’s knees, the Veteran denied trouble with his knees at service separation, the Veteran failed to report any previous knee pain or injury when seeking treatment for his knees in the 1990s, and the Veteran reported that his knee pain began seven years prior to the May 2003 VA examination (in 1996) around the time of his first ATC accident. As such, his report of symptoms during active duty has low probative value. The Board assigns greater probative to the medical evidence contemporaneous with active duty service showing no abnormal knee pathology or symptoms, the Veteran’s denial of such symptoms, and the Veteran’s omission of active duty onset when later seeking treatment for knee disabilities. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Thus, as the second prong for entitlement to service connection on a direct basis is not met, the claim must fail under this theory of entitlement. The Board now turns to whether service connection is warranted on a secondary basis. However, as the Veteran’s claim of entitlement to service connection for bilateral shin splints has been denied herein, he is not service-connected for that disability. Because a service-connected disability is required for secondary service connection, and the bilateral shin splints to which the Veteran alleges his bilateral knee disability is secondary is not service-connected, service connection on a secondary basis must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability, to include as secondary to bilateral shin splints, is remanded. The Veteran maintains that he should be service-connected for a low back disability, to include as secondary to bilateral shin splints. As service connection for bilateral shin splints has been denied herein, his secondary service connection claim on that basis must fail. However, he is entitled to consideration on a direct basis. The Veteran has a current low back disability as he has been variously diagnosed with lumbago, spinal stenosis, and degenerative disc disease of the lumbar spine. He states that during his time serving as a wheel and track mechanic he fell off tanks multiple times and the hard impact of the falls caused his current low back disability. He also points to a bicycle accident from September 1979 that has been corroborated by his wife and is documented in his service treatment records as a possible cause of his current low back disability. The Veteran’s service treatment records also indicate that his back was injured in basic training, although the note was followed by an indication that he had no additional trouble with it. Because of the possible association between the Veteran’s current low back disability and the in-service incident, specifically the documented bicycle accident, the low threshold of McClendon v. Nicholson, 20 Vet. App. 79 (2006) has been satisfied, and a remand for an examination is necessary to ascertain the nature and etiology of his low back disability. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to bilateral shin splints, is remanded. The Veteran maintains that he should be service-connected for a bilateral hip disability, to include as secondary to bilateral shin splints. As service connection for bilateral shin splints has been denied herein, his secondary service connection claim on that basis must fail. However, he is entitled to consideration on a direct basis. The Veteran is currently diagnosed with degenerative joint disease in his hips. He states that during his time serving as a wheel and track mechanic he fell off tanks multiple times and the hard impact of the falls affected his hips. He has also averred that he injured his hips during service when he fell against the wall playing racquetball, and again in the September 1979 bicycle accident. The Veteran’s service treatment records corroborate the fall into the wall during racquetball and the bicycle accident. They also indicate that he experienced chronic right hip pain with weightbearing and had been treated for this problem ten times with absolutely no improvement. Because of the possible association between the Veteran’s current hip disability and the in-service incidents, specifically the documented fall into the racquetball wall, bicycle accident, and treatment for chronic right hip pain, the low threshold of McClendon has been satisfied, and a remand for an examination is necessary to ascertain the nature and etiology of his bilateral hip disability. 3. Entitlement to service connection for a right shoulder disability is remanded. The Veteran avers that service connection is warranted for a right shoulder disability. He has a current diagnosis of degenerative joint disease in the right shoulder. While in service, the Veteran was in a bicycle accident in which he flipped over the handlebars. He believes this caused injury to his right shoulder. His service treatment records corroborate the bicycle accident and also show diagnosis and treatment for traumatic bursitis of the right shoulder. Because of the possible association between the Veteran’s current right shoulder diagnosis and his in-service injury and diagnosis of traumatic bursitis, the Board finds that the low threshold of McClendon has been satisfied, and a remand for an examination is necessary to ascertain the nature and etiology of his claimed right shoulder disability. 4. Entitlement to service connection for an upper back/neck disability is remanded. The Veteran avers that service connection is warranted for an upper back/neck disability. He has current diagnoses of cervicalgia and advanced cervical spondylosis. C2-C7 degenerative disc changes have also been observed. While in service, the Veteran fell into a racquetball wall and was in a bicycle accident in which he flipped over the handlebars. He believes these events have caused injury to his upper back/neck that has resulted in his current disability. Service treatment records corroborate these instances and indicate that the Veteran complained of four months of right interscapular torso pain. He also complained of neck pain. Because of the possible association between the Veteran’s current upper back/neck disability and the in-service events and complaints of upper back and neck pain, the Board finds that the low threshold of McClendon has been satisfied, and a remand for an examination is necessary to ascertain the nature and etiology of his claimed upper back/neck disability. 5. Entitlement to service connection for COPD is remanded. The Veteran avers that he has COPD that is related to asbestos exposure in service. He maintains that when replacing brakes, he inhaled a large amount of the dust that was emitted from the parts. He believes those brake parts contained asbestos and he testified knowledge of other documented cases of brakes containing asbestos. To date, the RO has not addressed the Veteran’s contentions pertaining to asbestos exposure. On remand, the RO must conduct any necessary development related to the asbestos exposure claim and adjudicate the issue of entitlement to service connection for COPD, claimed as secondary to asbestos exposure. 6. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran maintains that his bilateral hearing loss resulted from his active duty service. He states that while he served as a wheel and track mechanic he was exposed to heavy engine noise of vehicles ranging from jeeps, to trucks, and tanks with no hearing protection. He asserts that he began to experience notable hearing loss during service and that it has worsened over the years, despite working in quieter customer service environments and having no noisy hobbies post-service. On VA examination in September 2010, the examiner observed that the Veteran had a current diagnosis of bilateral sensorineural hearing loss. She noted that the Veteran’s service treatment records reflect a significant shift in hearing levels; however, they remained within normal limits. The examiner opined that the Veteran’s hearing loss was less likely than not due to his military service, as there was no hearing loss at separation. Citing medical literature in the form of an Institute of Medicine (IOM) study in 2005, the examiner further stated that there was no scientific basis for delayed or late onset noise-induced hearing loss occurring weeks, months, or years after the exposure event. The Board observes that Court of Appeals for Veterans Claims (Court) has recently noted that medical opinions citing this IOM report in this manner appear to misstate or incompletely contemplate the IOM report’s pertinent conclusions. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). The Court has repeatedly directed attention to the fact that, although the IOM report states “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report’s findings pertinent to the matter. While a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM Report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (IOM report at 203-04.) The Court has directed attention to the fact that the IOM report’s language may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss such that a VA examiner’s citation of the report should contemplate to all the pertinent aspects of its findings. Accordingly, due to the recent attention to this language presenting a more complete understanding of the IOM report’s pertinent conclusions, the Board finds that a remand for an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining the necessary authorization from the Veteran, obtain and associate with the claims file any identified relevant private medical records. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159 (e). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the September 1979 documented bicycle accident. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hip disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the racquetball fall or the September 1979 documented bicycle accident. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the racquetball fall, the September 1979 documented bicycle accident, or the in-service diagnosis of traumatic bursitis. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any upper back/neck disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the racquetball fall, the September 1979 documented bicycle accident, or the in-service complaints of interscapular torso and neck pain. 7. Conduct any necessary development for the Veteran’s claim of entitlement to service connection for COPD, to include as secondary to asbestos exposure, to include scheduling a VA examination by an appropriate clinician to determine the nature and etiology of any respiratory disability if necessary. If the examination is warranted, the examiner must opine whether any diagnosed respiratory disability is it is at least as likely as not related to an in-service injury, event, or disease, including the purported asbestos exposure. 8. Obtain an addendum opinion addressing the etiology of the Veteran’s bilateral hearing loss. The claims file should be made available to and reviewed by the examiner. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush